Searching for a safe harbor

TorrentFreak reported a few days ago that Google has filed an amicus brief in the appeals case against torrent search engine isoHunt:

Google has been keeping an eye on the legal battle between the MPAA and isoHunt as last week, out of nowhere, the company unexpectedly got involved in the motion for summary judgment appeal. The search giant, which has always stayed far away from these types of cases, filed an amicus cuiae brief (third party testimony) at the Appeal Court.

“This cases raises issues about the interpretation and application of the safe-harbor provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512 et seq. (“DMCA”) and common-law rules governing claims for secondary copyright infringement. Google has a strong interest in both issues,” Google’s counsel writes.

Talk about understatement.  You can read Google’s 39-page brief for yourself over on Scribd — thanks to PaidContent for posting.

TechDirt posted additional commentary late yesterday suggesting that Google’s stance in the isoHunt appeal is mostly about its own ongoing litigation with Viacom:

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.

The last thing Google wants is to be liable for copyright infringement under the DMCA every time there is a “red flag” that infringement is taking place; that would be the end of Internet search engines as we know them.

Of course, Google’s business strategy isn’t merely to file amicus briefs and hope 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”.

Hat tip to Keith Lowery for sending me the link to the original TorrentFreak story.

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