Google Finally Gets Involved In Torrent Search Engine Lawsuit... But Just To Reject 'Red Flag' DMCA Violations
from the but-of-course dept
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
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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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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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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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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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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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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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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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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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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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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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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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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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"Dialogue"
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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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