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Originally Posted by react
All very possible and of course the devil is in these details. But my interpretation is that the sites were operating as SE's and not at all as UGCs, certainly in the context of the case.
We can all only hope they won't rule any differently in the favor of either party just because the content was exclusively explicit.
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Don't get me wrong; from where I sit, the significance of the sites being porn-specific in this case isn't rooted in the nature of the content itself -- it's the
specificity of the selection that I think is very different from what a search engine does.
If the landing pages of the sites at issue in this case had a search field on them, and nothing else, and content was only displayed following the entry of a search query, I think Perfect 10 v. Google would be directly on-point. In this case, the sites aren't displaying content by returning search results, they are scraping videos from third party sites based on criteria that was (presumably) set by the operator of the site.
That's what I think the court will find significant, and very different from the facts at hand in Perfect 10 v. Google. It doesn't matter that the specific material is porn; it could be specifically clips from cooking shows, and the principle would be the same. The site operator has made a conscious choice to display a particular kind of content, and unless I'm mistaken, with respect to the sites in this case, the same content is displayed by default to every visitor who lands on those sites. That's just not at all what a search engine is/does, so I'm not persuaded that precedent pertaining to search engines will be relevant to the court.
I could be completely wrong, of course. Maybe the court won't see the relevant precedent as being limited to search engines, or maybe it will see the sites at issue as being more analogous to Google than I do.
Naturally, all of the above only matters if this case ever gets far enough along in its adjudication that the court actually hears any of the arguments, which it may well not. Most cases settle out of court, and I wouldn't be at all surprised to see this one settle before the court reaches any questions of law.