The Ridiculous Trademark Saga Of Kennedy Fried Chicken

Google Finally Gets Involved In Torrent Search Engine Lawsuit... But Just To Reject 'Red Flag' DMCA Violations

from the but-of-course dept

Mon, Feb 21st 2011 4:07pm — Mike Masnick

TorrentFreak is noting that Google has, perhaps for the first time, waded into any of the lawsuits concerning torrent search engines, filing an amicus brief in the ongoing IsoHunt appeal. In the past, other torrent search engines have been somewhat upset that Google has stayed quiet, noting that many of the arguments used against them could equally apply to Google. Google, of course, has stayed away because it goes to great lengths these days to avoid any appearance of "supporting piracy."

While TorrentFreak (and IsoHunt) seems surprised or disappointed by Google's actual amicus brief in the IsoHunt case, it's really not surprising. Google's participation here is entirely about the YouTube/Viacom lawsuit and appeal. What was really notable about the original IsoHunt ruling, was that it was the only real legal ruling that said that you could violate the DMCA even in absence of takedown notices. That is, it highlighted the idea of "red flag" awareness of infringement. This was the key issue in the YouTube/Viacom lawsuit. Google argues that as long as YouTube took down any content it received a takedown notice on, it was in compliance and protected by safe harbors. Viacom leaned heavily on the IsoHunt ruling, to claim that the DMCA doesn't just cover takedown notice responses, but also requires a response to "red flag" infringement.

However, Google knows that the IsoHunt ruling is basically the only legal precedent out there that reads the DMCA in this manner. So, from Google's perspective, dumping that reasoning is key. So its amicus brief still argues that IsoHunt is guilty of contributory infringement, a la the Grokster standard, but not because of red flag infringement. So, I don't find it that "unexpected" that Google got involved, or filed the brief that it did. It's focused entirely on its own lawsuit here, and hoping that the appeals court will take away the one serious case that Viacom has in its pocket for the YouTube appeal.

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Filed Under: copyright, dmca, red flags, torrents
Companies: google, isohunt, mpaa, viacom, youtube

22 Comments

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Anonymous Coward, 21 Feb 2011 @ 5:21pm

Just out of curiosity... do you agree with Google that Fung is an infringer? If so, under what theory of liability?
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Anonymous Coward, 21 Feb 2011 @ 6:58pm

Google's self interest is obvious, and very unlikely to sway the courts. The "red flag" concept is valid. Once you know that something is offending, you shouldn't be relisting it 5 minutes later. That entirely defeats the purpose of DMCA, which is to stop infringements, not give service providers an easy way out.
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Anonymous, 21 Feb 2011 @ 8:42pm

Google has no principles except that of profit, just like any other major corporations. Idealistic pirates who see them as some white knight champion for their cause are full of it.

Google does what it does because it makes money doing it. They are probably one of the biggest piracy facilitators on the Internet, but until the law tells them otherwise, why would they stop? There's good money in piracy, as long as you're a pirate. If you don't have to pay to create something, everything you get back from ripping it off is profit.
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Anonymous Coward, 21 Feb 2011 @ 8:48pm

Re:
Vicarious liability? Possibly, as it IsoHunt did have means at hand to mitigate infringing activities, as well as having received a direct financial benefit from its activities as a website.

Contributory liability? Almost certainly under Grokster as being an active participant that had the direct effect of encouraging/inducing infringement by third parties. Some might argue that Sony is controlling, but that argument was dismissed in a 9-0 decision by the Supreme Court.

The more pressing question, as noted by Google in its brief, is whether or not the DMCA should have even been considered in the course of the litigation. Independent of the DMCA IsoHunt's activities appear to fall under "bread and butter" copyright infringement principles associated with secondary liability.

A still further question to ask is whether or not a torrent site can exist without running afoul of copyright law? The answer is "yes", but to run such a site in a compliant manner would not be a real money maker absent some other way for the site to monetize what it is doing. What other means are available for monitization I leave to those who work at Techdirt.
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Anonymous Coward, 21 Feb 2011 @ 8:48pm

Re:
Vicarious liability? Possibly, as it IsoHunt did have means at hand to mitigate infringing activities, as well as having received a direct financial benefit from its activities as a website.

Contributory liability? Almost certainly under Grokster as being an active participant that had the direct effect of encouraging/inducing infringement by third parties. Some might argue that Sony is controlling, but that argument was dismissed in a 9-0 decision by the Supreme Court.

The more pressing question, as noted by Google in its brief, is whether or not the DMCA should have even been considered in the course of the litigation. Independent of the DMCA IsoHunt's activities appear to fall under "bread and butter" copyright infringement principles associated with secondary liability.

A still further question to ask is whether or not a torrent site can exist without running afoul of copyright law? The answer is "yes", but to run such a site in a compliant manner would not be a real money maker absent some other way for the site to monetize what it is doing. What other means are available for monitization I leave to those who work at Techdirt.
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Anonymous Coward, 21 Feb 2011 @ 8:50pm

Re: Re:
Not at all clear why this came out as a double post.
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Anonymous Coward, 21 Feb 2011 @ 11:54pm

Re:
There's an awful lot of rhetoric here.
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The eejit (profile), 22 Feb 2011 @ 2:38am

Re:
Once again, hyperbole. Once Google is notified legally, a notice is sent. OR have you not been paying attention. That fact that Google can find illegal material for you does not mean that it necessarily makes money from it. Added to this, it's a doorway, not the illegal thing itself.

And as for that last sentence, it's laughable. Culture is about all the things in it, not just what you can make money off. See, for example, Michaelangelo, and Raphael. They didn't have to pay to create something, so they must clearly be pirates.
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sagescape (profile), 22 Feb 2011 @ 6:05am

"Dialogue"
As I discuss over on my blog Legally Sociable, Google isn't limiting its strategy to filing amicus briefs and hoping for the best. The search giant has also recently taken proactive steps to reduce its liability, including turning off autocomplete results for torrent-related searches. I guess this is what the Intellectual Property Enforcement Coordinator (IPEC) meant by "dialogue", as detailed in her recent report:
the IPEC has facilitated and encouraged dialogue among the different private sector Internet intermediaries that contribute to the dynamic nature and functioning of the Internet, including payment processors, search engines and domain name registrars and registries. These entities are uniquely positioned to enhance efforts of rightholders and law enforcement to combat infringing activity and help reduce the distribution of infringing content in a manner consistent with our commitment to the principles of fair process, freedom of expression and other important public policy concerns. We believe that most companies share the view that providing services to infringing sites is inconsistent with good corporate business practice and we are beginning to see several companies take the lead in pursuing voluntary cooperative action.
I'm not sure how "voluntary" this really is -- or whether "fair process" and "freedom of expression" accurately describes a "dialogue" written under a Damoclesian sword of statutory copyright damages and domain name seizures. But I will agree that ruinous lawsuits and seizures are "inconsistent with good corporate business practice".
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Anonymous Coward, 22 Feb 2011 @ 6:20am

Re: Re:
Google is a huge facilitator of copyright violations, and they know it. Buying YouTube was a perfect fit to their "web view", because they see the web as something you take from and hope nobody ever complains. If they do, try to hide behind section 230 or other protections, and try like hell not to get sued and lose.

Red Flag rules would make Google's life much more difficult, because once they accept a DMCA which says "this work is not authorized", they might actually have to filter it out of all results. A single DMCA for an image should, as a result, take out all similar images from their image results, example. A file called "newest_movie_title_here.torrent", once DMCA'ed, would also have to have any other page that refers to it removed from their results, in order to avoid providing that same copyright material in another manner.

Google's problem is that it is unlikely this case gets overturned. Fung sank the ship with his own admissions and his own actions. It is unlikely the courts will change their judgements. It leaves Google sort of holding the bag, with the next Red Flag legal action against them having a much bigger chance of success as a result of the judgements in the IsoHunt case.

Perfect10s, are you listening?
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Anonymous Coward, 22 Feb 2011 @ 6:54am

Re: Re:
Thanks for the answer (I was the one that asked the question above).

It seems clear to me that Fung is liable for inducement, contributory, and vicarious infringement. The district court found Fung liable under the Grokster inducement liability theory, and left the other two theories untouched as being unnecessarily duplicative--Fung is secondarily liable no matter which theory you analyze it under.

Mike, on the other hand, has argued that Fung is not liable under any theory. I'm just curious if now that he's read Google's brief, he cares to change his stance. To me, and apparently to Google, the evidence overwhelmingly demonstrates Fung's liability. Evidence, mind you, that the district court characterized as wholly unrebutted.

I'm curious if Mike is just defending Fung because of some innate need to defend all pirates no matter what. It certainly seems that way. IMO, if he were being intellectually honest, he would admit that Fung is a secondary infringer. The fact that he denies it in the face of such evidence leads me to believe that when it comes to piracy, the last thing he wants to be is intellectually honest.

My understanding of why Sony is not controlling is that once you have knowledge of the infringement, you lose any safe harbor that Sony may have given you.

As far as torrent search engines goes, I think the answer is that you could run one legally, but it would next to impossible to do so. The fact that 90%+ of torrents are infringing doesn't help. It'd be like trying to set a up a search engine that searches for naked pictures of children that are art and not pornography. Such pictures exist, but good luck setting a search engine that doesn't get you in trouble.
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Anonymous Coward, 22 Feb 2011 @ 6:57am

Re: Re: Re:
No worries. It happens. :)
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Anonymous Coward, 22 Feb 2011 @ 6:58am

Re:
Right. You can pretend like "red flag" knowledge isn't written into the statute, but it is. And it's more than just a "general knowledge" as Mike tries to make it out to be.
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Anonymous Coward, 22 Feb 2011 @ 7:13am

Re: Re: Re:
It is very clear that Fung is liable. But finding a torrent site owner guilty of anything pokes huge holes in the Universal Techdirt Torrent Theory (UTTT), which suggests that torrent site owners some how are exempt from basic laws because they don't actually host the content, they just facilitate it's distribution.

The only way for a torrent site to be legal would require that they are never aware of what is on their site, and to do so would require them to never receive a single DMCA or copyright infringement notice. As soon as they have the notice, they are aware and thus, can't easily avoid the liablity.

As for "secondary infringer", Mike likes to bury that idea by calling people like Fung "third parties". They didn't create the torrent, they didn't post it, they don't host it, so they clearly have nothing to do with copyright material. It isn't clear who he thinks is a secondary infringer, because the person pushing the torrent is the primary. Perhaps the person receiving it is secondary.

Google knows which side of the bread the butter is on (they indexed the bread). They know that much of their own business models depend on violating copyright repeatedly and often, but they hope that the standards for copyright violation are moved back to wherever they are operating, so they don't have to take action. But the red flag issue is one they cannot move away from, and could really change the operation of google images, youtube, and other similar sites.
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Anonymous Coward, 22 Feb 2011 @ 9:28am

Re: Re: Re: Re:
As for "secondary infringer", Mike likes to bury that idea by calling people like Fung "third parties". They didn't create the torrent, they didn't post it, they don't host it, so they clearly have nothing to do with copyright material. It isn't clear who he thinks is a secondary infringer, because the person pushing the torrent is the primary. Perhaps the person receiving it is secondary.

I think Fung's case is the clearest proof there is that Mike cares nothing about what the EVIDENCE says, and he'll argue that someone is not an infringer no matter how much EVIDENCE to the contrary exists. It's quite telling, as it demonstrates that there is an agenda underfoot. For me, it shreds any and all credibility that he might otherwise have when talking about piracy or evidence in general.
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Mike Masnick (profile), 22 Feb 2011 @ 10:18am

Re: Re: Re: Re: Re:
I think Fung's case is the clearest proof there is that Mike cares nothing about what the EVIDENCE says, and he'll argue that someone is not an infringer no matter how much EVIDENCE to the contrary exists. It's quite telling, as it demonstrates that there is an agenda underfoot. For me, it shreds any and all credibility that he might otherwise have when talking about piracy or evidence in general.

Why do you always lie? I have argued against infringers when there's proof of infringement. I believe that both Jammie Thomas and Joel Tenenbaum were infringers, and in both cases, I said they should have just paid up rather than gone to court.

In this case, however, there are more issues that you seem to ignore even though I have pointed them out.

To then accuse me of intellectual dishonesty over them is pretty silly.

By the way, wasn't it just last week you were mocking people for commenting anonymously?
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Anonymous Coward, 22 Feb 2011 @ 10:51am

Re: Re: Re: Re: Re: Re:
You are correct. You did admit that Thomas-Rasset and Tenebaum were infringers. Considering that Tenenbaum ADMITTED it, that's not so telling. I'll give you points for declaring the obvious about Thomas-Rasset. My bad for making an overly-broad statement.

But...

So, despite the Google brief that describes how obvious Fung's liability is, you're still going to deny any possibility that he's an infringer?

That's my problem here. I feel you are ignoring the VAST amount of EVIDENCE that proves he is liable.

And if it's so obvious that Fung is not an infringer, wouldn't it make more sense for Google to argue that and to try to get the case reversed? Why would they fight to affirm a case when dismissing it would help them out so much more?

Surely Google's bevy of lawyers could have argued for Fung's innocence, since it seems so obvious, to you anyway. But they didn't. They argued about how obvious his liability was.

Why's it not obvious to you? If you want to run us through all the reasons why Fung did no wrong, I'm sure we'd all like to see it.
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Mike Masnick (profile), 23 Feb 2011 @ 12:24am

Re: Re: Re: Re: Re: Re: Re:
You are correct. You did admit that Thomas-Rasset and Tenebaum were infringers. Considering that Tenenbaum ADMITTED it, that's not so telling.

No, I argued that before both admitted it -- back when both denied it, but the evidence was too strong.

That's my problem here. I feel you are ignoring the VAST amount of EVIDENCE that proves he is liable.

We've discussed this. I disagree that the evidence really makes him liable. We disagree. That doesn't make me dishonest.

And if it's so obvious that Fung is not an infringer, wouldn't it make more sense for Google to argue that and to try to get the case reversed? Why would they fight to affirm a case when dismissing it would help them out so much more?

Because, obviously, Google has its own interests at stake -- and keeping others out of the search engine market is one such interest. Secondly, it wants to curry favor with the entertainment industry, and clearly bashing a site like IsoHunt is an easy target.

Surely Google's bevy of lawyers could have argued for Fung's innocence, since it seems so obvious, to you anyway. But they didn't. They argued about how obvious his liability was.

Yes, because it helps Google.

Why's it not obvious to you? If you want to run us through all the reasons why Fung did no wrong, I'm sure we'd all like to see it.

I have done this before. In great detail.
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Anonymous Coward, 23 Feb 2011 @ 10:30am

Re: Re: Re: Re: Re: Re: Re: Re:
So you think the gain from getting rid of a "competitor" like isohunt is more valuable to Google than having his case reversed? LOL! That makes no sense. A reversal would get rid of "basically the only legal precedent out there that reads the DMCA in this manner."

The fact is, his liability is so obvious that Google can't argue he's not liable with a straight face. A task, mind you, that you have no trouble doing.

And I'm not surprised you don't want to run through all the reasons why Fung is/isn't an infringer. I had so much fun beating you last time we went through it.
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Tess, 6 Mar 2011 @ 1:45am

U think that torrents are the fastest way to download movies, music, etc. It's great that we have such opportunity to download for free and very fast.
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Tess, 6 Mar 2011 @ 1:46am

I think that torrents are the fastest way to download movies, music, etc. It's great that we have such opportunity to download for free and very fast. I always download from http://torrentoff.com.
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Anonymous Coward, 15 Mar 2011 @ 5:58am

Actually, there is ONE other ruling which goes against Google.

Look up Parker v. Microsoft, where the judge (I'm Parker from this case) allowed my ifnringement claim to go to trial, but only for continued infringement. The judge hadn't made up her mind, but she was willing to hold trial on all the above points (Microsoft "countersued" me after winnning some of them to try to get attorney fees, then realized they had outlawyered themselves and settled).

Google also settled with the publishers guild, I believe, and still won't take ads in Google News because of this. Indirect monetization has not flown as an argument of direct profit unfortunately.
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