Italians Issue Another Dubious Anti-Search Decision

Earlier this year the Italian Communications Authority decided that YouTube was effectively a TV broadcaster and imposed the same rules and restrictions that apply to TV in Italy — and potential penalties for their violation — on Google. It said that Google is now legally responsible for any content appearing on YouTube. Now an Italian court has done something potentially much more sweeping with broad implications for search in Italy.

Yahoo Guilty for Linking to Infringer

Yahoo (in its capacity as a search engine) has been found liable for helping facilitate copyright infringement by indexing and linking to sites that allowed the unauthorized download of an Iranian film called “About Elly.” (It’s curious that this case wasn’t brought against Google, which has a market share in Italy of nearly 90 percent.)

Plaintiffs in the case were the film’s distributor and a media affairs company (PFA, Open Gate Italia). I’m unable to read the Italian reports about the case. But according to Sean Carlos at Antezeta, which is based in Italy, the decision says that once a search engine is notified of any alleged copyright violation they become liable for aiding the infringement if they don’t remove links to the offending sites.

Decisions about Organic and Ads Going Opposite Ways

It would appear that cases involving copyright or trademark infringement regarding “organic” content are going the opposite way from those involving trademark claims in paid search advertising. Increasingly Google and Yahoo/Bing by extension are being absolved of liability for trademark claims involving paid search ads. For example in the celebrated LVMH (Luis Vuitton) AdWords case, the French high court ruled that Google did not infringe trademark law by allowing advertisers to bid for competitors’ trademarks as keywords. (But see European Advocate General Finds Against Trademark Bidding in Interflora Case.)

What’s important here is that while individual advertisers could be held liable for infringement Google was not on the hook for their bad behavior (with some caveats). The YouTube and Yahoo cases feature the opposite outcome, making Google and Yahoo potentially legally responsible for all the content they index. In particular the Yahoo decision puts a heavy burden on the company to become an arbiter of copyright law or simply remove any links from the index once there’s a claim of infringement. Sean Carlos at Antezata argues this might lead to abuse by unscrupulous competitors.

Bad Decision Creates Practical Challenges

That’s less of a concern in my mind than the bad precedent. Assuming this decision stands it creates a host of practical challenges for search engines. For Yahoo and Bing those are potentially compounded.

Under the new liability rules announced by the court, Yahoo would need to pass infringement notifications on to Microsoft because Bing is now the organic index behind Yahoo Search. That relationship adds some complexity (and exposure) to the process because Microsoft would ultimately need to do the link removal or enforcement.

What if Yahoo is notified of an alleged infringement and then conveys that to Microsoft and then Microsoft fails to act. Plaintiffs sue and Yahoo points at Microsoft as the party that failed to act?

Overall it’s a mistake to hold search engines to the same legal standards as traditional publishers, concerning libel and copyright law. The scale and scope of search is very different than conventional publishing or TV broadcasting. Indeed, search engines don’t have control over the many millions of sites they index.

But Italy’s regulators and courts won’t hear any of it. They’ve apparently had enough of this internet thing.

(Image via Shutterstock)

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