What the Pirate Bay Verdict Could Mean For Google

explosivejared writes "Forbes is running a story discussing the verdict in the Pirate Bay case and its implications on file sharing, specifically with regard to Google. The article points out what most people on Slashdot already realize: Google provides essentially the same service that the Pirate Bay does. The Pirate Bay case may be far from over, accounting for appeals, but the Pirate Bay's assumption of being unchallengeable was shattered. The article raises the question of whether or not Google is untouchable in the matter. The story is quick to point out how the situation resembles a futile game of cat-and-mouse, but given how the Pirate Bay's confidence was ultimately broken, is Google beyond reproach?"

Comments

Been there already

[Norsefire]

This was touched on in the trial, again. and again, and again and again. Ultimately the IFPI said that Google is working with them to stop piracy.

"Kennedy was asked why they haven't sued Google the same way as TPB. He said that Google said they would partner IFPI in fighting piracy and he has a team of 10 people working with Google every day, and if Google hadn't announced they were a partner, IFPI would have sued them too." (src)

Re:Been there already

[TheoMurpse]

I'm not a lawyer yet. I'm not your lawyer. I'm not anyone's lawyer. This is not legal advice.

There's "Google Cache."

I'm on your side with respect to the conclusion that Google and TPB are vastly different. However, you're barking up the wrong legal analysis tree to get there. Here's a very dirty, quick, and sloppy (but analytically pointing in the correct direction for legal argument) differentiation between Google and TPB:

The difference is the transformative nature of what Google provides (the first factor of the US's fair use analysis) and effect on the market of the original work (the fourth factor of the US's fair use analysis). This defends Google against a primary infringement suit premised upon their Google Cache or image searches (see Perfect 10 v. Amazon.com, Kelly v. Arriba Soft Corp.).

As for secondary liability (which is what the TPB guys were found guilty of), Google doesn't induce, while TPB does. Google likely has immunity from secondary liability via the DMCA. If not, they do rightfully control what they've indexed, and they respond to takedown requests, e.g. Google doesn't knowingly aid infringers. Thus, they're likely immunized from a successful suit premised upon any form of 2dary liability (inducement, contributory, or vicarious).

TPB would be found liable under the inducement theory for sure, just like Grokster was. You don't get to actively encourage piracy via your software/service and get away with it. Nor should you.

Re:Nonsense

[EyyySvenne]

Accually the verdict talks loosely about the tracker and more about how the torrent-files are the "tool" of the criminal in this case and since the torrent-files are saved on the harddrives of TPB (as compared to just temporarly going through, like in the router and proxy case) they are not granted immunity according to directive 2000/31/EG. The tracker is harder to categorize since it does not save any files, it just routes client connections pretty much.

Re:Nonsense

[xtracto]

The verdict explicitly addresses this point and states that due to TPB running the tracker and thus being intimately involved in the sharing of copyrighted material any comparison with Google is false. They were not convicted because TPB is hosting a bunch of torrent files, they were convicted because they were running a tracker.

Moreover, while TPB site itself contains the Torrent files, Google only has links to such files.

And again, the "colour" of the bits is what matters, as already said before TPB site itself was not the issue in the trial, it was that the guys conspired to help people commit copyright infringement.

Not that I am in favour of that shit... :(

Re:Google will have to pay

[Bill, Shooter of Bul]

The difference is that google would have cooperated with authorities and media companies. Take a look at what they've done with youtube and Video ID. They will actively try to prevent copyright infringement. Pirate bay didn't and wasn't willing to do that.

Re:Google will have to pay

[mpeskett]

Because TPB is in breach of the law? If they were going after the downloader you'd be arguing that they should be suing TPB. But fear not, with IPRED, they'll be going after the downloader, too!

Actually, if they were going after downloaders I'd say they were exploiting the court system with their money and lawyers... I'd be saying that in this case too if they hadn't been so shockingly incompetent.

TPB being in breach of the law is the current court decision, they still argue that they aren't and I find their argument convincing. It's yet to be seen whether an appeal court will agree. There's also nothing to say that a court wouldn't find Google to be in breach of the law if anyone were to sue them

Google complies with takedown notices, which grants them freedom from liability according to Swedish law (18 para 2002:562). TPB... oh wait.

Well, fair point that TPB don't comply with takedown notices, but most of the requests they get are appealing to US laws like the DMCA and hence deserve a heaping of scorn. There is also the fact that they don't host anything that's under copyright, so they have nothing to takedown except what is effectively a link to the infringing content... and I think I'm right in saying that linking is legal under Swedish law

Re:Google will have to pay

[lacoronus]

Google complies with takedown notices, which grants them freedom from liability according to Swedish law (18 para 2002:562). TPB... oh wait.

Well, fair point that TPB don't comply with takedown notices, but most of the requests they get are appealing to US laws like the DMCA and hence deserve a heaping of scorn.

According to Swedish law, the notification need not have any special format, nor contain any references to Swedish law. The law only talks about "awareness of obvious copyright infringement". This can be abused, but the service provider has another line of defence: They must be found to purposefully aid in the infringement.

For TPB, since they knew what DMCA was about, they can't really claim to not understand that they are not aware of obvious copyright infringement. If the note had been in Hungarian or hieroglyphs they could have claimed that the note was incomprehensible. If the movies were not big blockbusters they could have claimed that the notices were for material that weren't obviously infringing. (And be safe according to 18 para).

Finally, they have gone on record to say that the purpose of TPB was to infringe copyright. This means they are not protected under paragraph 19 either.

There is also the fact that they don't host anything that's under copyright, so they have nothing to takedown except what is effectively a link to the infringing content... and I think I'm right in saying that linking is legal under Swedish law

The court found that since the torrent file, after having been uploaded and stored on TPB, is an accessory of the crime of illegal copying, TPB must take down the torrent file.

So to summarize, and I am not a Swedish lawyer, linking is cool. Linking to infringing material is ok, as long as you cooperate with rights holders. Linking to material that isn't "obviously" infringing is completely ok.

And by "obvious" we mean that you'd have to be pretty willfully thick-headed to not connect the dots.

If you link to a YouTube video of a shaky camcorder movie of a Balkan wedding, you can reasonably claim that you had no idea that this was the greatest summer hit of 1933 in Kazakhstan, and just wanted to show what a Balkan wedding looked like. But if you link to "X-Men Origins: Wolverine", with the text "hey d00dz, get it before it's in the cinemas here!" you can't claim that you had no idea what it was.

Re:Google will have to pay

[lacoronus]

Yes - try searching for x-men wolverine origins torrent.

Re:Google will have to pay

[Omestes]

But if you link to "X-Men Origins: Wolverine", with the text "hey d00dz, get it before it's in the cinemas here!" you can't claim that you had no idea what it was.

Sure you can. How many things are listed in Pirate Bay? Millions? I doubt that anyone who works their actually knows more than a small percentage of the site, its just an automated database. Its like saying that Google "knows" that when I search for "X-Men Wolverine torrents" that its serving up copyrighted material.

Well, a more or less directions for you the user to do something illegal and not the actual content itself...