Why does search giant Google care about Isohunt, a search engine that few have ever heard of? That’s the question raised in a Paid Content report. Turns out Google filed a friend-of-the-court brief in a civil case against Isohunt Web Technologies, a BitTorrent site, because it’s concerned the court will set a precedent it doesn’t like.
The copyright infringement case — brought by Columbia Pictures, Disney, Paramount Pictures, Tristar Pictures, Twentieth Century Fox Films, University City Studios, University City Studios Productions and Warner Brothers Entertainment — has implications for any companies that work with user-generated content (like YouTube and the Google search engine). The Plaintiffs originally filed the case in 2006 and, in late 2009, U.S. District Court Judge Stephen V. Wilson ruled in their favor. The case is now on appeal.
Google got interested because it’s concerned that the ruling issued in 2009 was too broad, and could harm legitimate companies that provide consumers options to upload content, and link to such content.
“While the court largely reached the correct result, some of its reasoning goes well beyond what was necessary to resolve this case, and threatens to distort the law in ways that would make it more difficult for legitimate Internet service providers like Google and YouTube to offer innovative and useful services to their users,” Google wrote in its brief, filed earlier this month.
Google’s attorneys argue that the court needs to be more precise. Google cites the Grokster case, saying that to be found liable of infringement, an Internet service provider needs to act with the specific objective of encouraging users to infringe, take affirmative measures to foster infringement, and the infringement has to be a direct result of the service provider’s actions.
Though Google agrees that Isohunt is liable, it is concerned about some of the evidence cited in the ruling. One of the elements cited was “how the defendants’ websites presented information about files in browseable categories, provided additional information about those files, placed them into categories based on commonly searched terms, and used an indexing program that automatically matched filenames with specific terms.” That, Google says, is what all search engines do, and shouldn’t be considered inducement to infringement. Isohunt could be found liable even without considering that, Google argues.
Additionally, Google says the court needs to specify that Isohunt should only be liable for instances of infringement that directly stem from its inducement, and not all infringing activity that might be occurring.
The next bit about the case that troubles Google is whether Isohunt is eligible for safe harbor under the Digital Millennium Copyright Act (DCMA), and why. Though it says the court seems to believe that parties that are liable for inducing infringement are ineligible for safe harbor, Google argues that the question of safe harbor should be independent of any inducement questions.
“It’s clear this court thinks the DMCA online safe harbors only insulate against direct infringement, not secondary infringement,” writes intellectual property attorney Eric Goldman on his Technology & Marketing Law Blog. “The interplay between the safe harbors and secondary infringement remains a multi-billion statutory ambiguity.”
In addition, Google warns about a ruling that would require internet service providers to proactively police their services for infringing activity, and would hold them liable just for knowing, in the abstract sense, that infringement was taking place on their services. Needless to say, Google would bear a huge burden if it was legally required to proactively investigate any possible infringing activity both YouTube and its search engine.
“Generalized awareness that some unspecified material might be infringing is not enough to allow the service provider to do what the [DMCA] statute requires and thus cannot be enough to satisfy the DMCA’s knowledge provisions,” the brief says.
Though Isohunt’s loss seems a foregone conclusion, Google worries that, if the above concerns aren’t addressed, the case could be used against it in the future.