Is BPI Trying To Setup Google For Copyright Infringement Lawsuit?

from the here-comes-the-battle dept

Mon, Jun 21st 2010 4:18pm — Mike Masnick

Someone who prefers to remain anonymous sent over the Chilling Effects archive of BPI's recent DMCA takedown notice to Google. BPI (in case you didn't know) is the UK's version of the RIAA, and works closely with PPL, the group whose leader recently said there's no such thing as promotional use. BPI was also the driving force behind the recent Digital Economy Act that brought three strikes legislation to the UK, despite public outcry against it. Of course, lots of labels file DMCA notices all the time, and Google has noted in the past that it will take down links to infringing content when notified. While I still don't see how Google can or would be liable, seeing as it is merely accurately describing what its crawlers find and is not hosting the material in question, merely linking to it, Google still seems to go above and beyond what the law allows.

However, there were some interesting tidbits in this particular takedown notice that suggest that this is a setup for a larger plan by BPI -- a plan it may regret. First, it seems a bit odd that BPI has randomly selected 30 or so songs to take down, from a wide variety of songs that it technically represents. Second, beyond just giving Google the details of the files and links to the files, it also lists out the "infringing webpage(s)" as:

http://hotfile.com/
http://usershare.net/
http://2shared.com/
http://4shared.com/
http://mediafire.com/
http://megaupload.com/
http://sendspace.com/
http://teradepot.com/
http://zippyshare.com/

To expedite DMCA claims, Google specifically requests sufficient information "to permit Google to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred)." But BPI does not do that. It only lists out the above webpages.

My guess is that this is trying to set up Google, so that Google is officially "on notice" that these nine sites host infringing content, and while Google will almost certainly take down the links to the specific files listed, it's quite likely that similar files will quickly be found elsewhere on those sites -- and BPI may then try to claim that Google should automatically know how to block those other files. Part of the DMCA safe harbors is that you need to remove content if you have "specific knowledge" of the content. This is at the center of the Google-Viacom lawsuit. Google claims it needs to know the specific files that are infringing, while Viacom claims that once Google knows that "content x on YouTube" is infringing, it should be required to find and block all such content x's, even if Viacom has not informed Google where they are.

While the final decision in that case is still a ways off, for now, it looks like BPI is setting itself up to sue Google for lots of money as well, if Viacom gets away with its argument. And, you can bet that others will be lining up to do so as well. If anything, this suggests the massive legal problem that will result if Viacom wins its lawsuits. Suddenly, lots of content holders will be looking to "cash in" by suing YouTube for not tracking down each and every last version of any particular content.

Hopefully, the courts recognize (similar to what was recently found in the Perfect 10/Rapidshare case) that when a site gives clear tools to let you remove specific infringing content, making a general claim does not fly.

Along those lines, however, it is worth noting that Google recently dropped a lawsuit against record label, Blues Destiny, in which it sought a declaratory judgment that just linking to content is not infringing. Google withdrew after Blues Destiny promised it wasn't going to sue Google for infringement, but it might have been better to get that legal precedent in place.

Either way, sooner or later, it looks like we're going to get another legal showdown over whether or not it's legal for Google to just link to infringing material. When that case goes forward, it could be a defining moment in whether or not search engines, themselves, are actually legal. If BPI does sue -- and loses -- it could also open up some legal room for content specific search engines that aren't deemed infringing as well.

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Filed Under: copyright, dmca, takedown
Companies: bpi, google

16 Comments

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Anonymous Coward, 21 Jun 2010 @ 5:05pm

I find the though of this case particularity interesting. If BPI sues and looses, that would set a precedent for all torrent sites since they are only linking info. Course shutting down torrent sites is like shooting one fish in the ocean with a pellet gun.
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Karl (profile), 21 Jun 2010 @ 5:37pm

File lockers
What is especially interesting is that all of those sites listed are only file lockers.

In other words, they are no more responsible for users' infringement than Google is.

If those sites are indeed blocked by Google, leading to less search engine traffic, then every single one of those sites would have grounds to file a libel suit against the BPI.

That's something I'd like to see!
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viperfl (profile), 21 Jun 2010 @ 5:43pm

find it funny
I find it funny since 3 of the sites I know of are storage sites like Rapidshare. They are megaupload.com, hotfile.com, and mediafire.com. Even if Google blocks these sites when someone does a search, the links are still all over the internet. BPI should be suing these sites, not Google. Of course BPI is going to go where the money is. Guess it easier to sue the one person that has billions rather than 100 people that don't equal to a 1/4 of that.
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robin, 21 Jun 2010 @ 5:56pm

Not W/O Precedent
Overall, fun, thoughtful and harmless speculation by Mike here.

But, most importantly, not without precedent in the sense that the offending organizations and the individuals who run them demonstrably have their heads buried as far up their rear quarters as conceivably possible (as amply noted by Mike).

And, like probably quite a lot of folks within this community, would be quite excited by such a lawsuit. One for the sheer joy of watching another utter FAIL by the recording industry, but, two also by the fact that such a suit would take, what, 5 years to come to a decision?

How many millions of kids coming of age and going to college would Big Content alienate in this time? How many millions of young adults graduating from college and entering the world would Big Content alienate in this time?

Yep, ANOTHER entire generation, lost as potential customers. Tell me that's not fun to watch.....
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Anonymous Coward, 21 Jun 2010 @ 7:04pm

The real war's about to start, google v recoding industry my moneys on google.
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Hephaestus (profile), 21 Jun 2010 @ 8:00pm

Re: Not W/O Precedent
"How many millions of kids coming of age and going to college would Big Content alienate in this time? How many millions of young adults graduating from college and entering the world would Big Content alienate in this time?"

How many of those kids are going to sit in their dorm rooms and start writing code for the next P2P, weblocker, or TOR like app? What happens when one of them writes an encrypted, distributed P2P version of a torrent tracker that runs on a million machines, mixes in VPN, and torrent download ability?

Or ... (other shoe drops) ... when someone creates small 5 meg VPN app, with forwarding-proxy, DFS, and virtual DNS? Some thing that you can sit any web based server or app on top of.
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Hephaestus (profile), 21 Jun 2010 @ 8:22pm

Re:
My bet is that google will sit and wait them out and not start a war. The people at google are smarter than the record industry execs. They know its only a matter of time before the labels and studios crash and burn. Why start a war when you can fight a delaying action, set yourself up to be a replacement, allow competition and infringement to whittle away at you enemy, and let your enemy defeat himself?

Often the best way to win a war is to not fight.
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L, 21 Jun 2010 @ 8:50pm

The BPI should meet the competition.

http://www.jamendo.com/en/artist/Houdini_Roadshow
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L, 21 Jun 2010 @ 8:53pm

Jamendo offers low prices and free [collection agency name here] that can be used and licensed very easily, they even put in the front page what they are doing and it is free to download all music, those people trying to prevent people from enjoying something will discover that that same public can create their own alternatives and that will be the final nail in the coffin for them.
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Anonymous Coward, 22 Jun 2010 @ 6:15am

Re: File lockers
They are pirate lockers... Less than 1% of their storage is legit.
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btr1701 (profile), 22 Jun 2010 @ 8:37am

Re: Re: File lockers
> They are pirate lockers... Less than 1% of their storage is legit.

Cite?
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Valkor, 22 Jun 2010 @ 10:58am

Re:
Cut and paste astroturf fail.
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Valkor, 22 Jun 2010 @ 11:04am

Re: find it funny
Better than that, according to BPI, the infringing files are the main index.html file of the web site. Someone needs to explain the difference between a web site and a web page to BPI. Google really should send BPI a friendly letter that states they visited the ten listed web *pages* and found no infringing content there.
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Karl (profile), 22 Jun 2010 @ 5:42pm

Re: Re: File lockers
How would you know how much of their storage is "legit"? Been downloading from them again?

But even if that's true, then the copyright holders should file a DMCA takedown notice against that content. Not a blanket ban on the service itself, and certainly they should not demand that a third party ban them.

It's exactly as if the BPI wrote a threatening letter to Best Buy, saying that they have to stop selling VCR's, or they will get sued.
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Karl (profile), 23 Jun 2010 @ 5:51pm

Re: Re: Re: File lockers
Actually, it's not even "third party infringement" in this case, it's "fourth party infringement."

Thank goodness for the Google/Viacom ruling.
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Christopher (profile), 5 Feb 2012 @ 11:32pm

Re: Re:
Only when you are talking about real, blood/sweat/tears wars. In cases like this, the absolute best thing to do is to fight and fight HARD!

Why? Because it can speed your enemy onto their just demise.
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