Is BPI Trying To Setup Google For Copyright Infringement Lawsuit?
from the here-comes-the-battle dept
Someone who prefers to remain anonymous sent over the Chilling Effects archive of BPI’s recent DMCA takedown notice to Google. BPI (in case you didn’t know) is the UK’s version of the RIAA, and works closely with PPL, the group whose leader recently said there’s no such thing as promotional use. BPI was also the driving force behind the recent Digital Economy Act that brought three strikes legislation to the UK, despite public outcry against it. Of course, lots of labels file DMCA notices all the time, and Google has noted in the past that it will take down links to infringing content when notified. While I still don’t see how Google can or would be liable, seeing as it is merely accurately describing what its crawlers find and is not hosting the material in question, merely linking to it, Google still seems to go above and beyond what the law allows.
However, there were some interesting tidbits in this particular takedown notice that suggest that this is a setup for a larger plan by BPI — a plan it may regret. First, it seems a bit odd that BPI has randomly selected 30 or so songs to take down, from a wide variety of songs that it technically represents. Second, beyond just giving Google the details of the files and links to the files, it also lists out the “infringing webpage(s)” as:
To expedite DMCA claims, Google specifically requests sufficient information “to permit Google to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred).” But BPI does not do that. It only lists out the above webpages.
My guess is that this is trying to set up Google, so that Google is officially “on notice” that these nine sites host infringing content, and while Google will almost certainly take down the links to the specific files listed, it’s quite likely that similar files will quickly be found elsewhere on those sites — and BPI may then try to claim that Google should automatically know how to block those other files. Part of the DMCA safe harbors is that you need to remove content if you have “specific knowledge” of the content. This is at the center of the Google-Viacom lawsuit. Google claims it needs to know the specific files that are infringing, while Viacom claims that once Google knows that “content x on YouTube” is infringing, it should be required to find and block all such content x’s, even if Viacom has not informed Google where they are.
While the final decision in that case is still a ways off, for now, it looks like BPI is setting itself up to sue Google for lots of money as well, if Viacom gets away with its argument. And, you can bet that others will be lining up to do so as well. If anything, this suggests the massive legal problem that will result if Viacom wins its lawsuits. Suddenly, lots of content holders will be looking to “cash in” by suing YouTube for not tracking down each and every last version of any particular content.
Hopefully, the courts recognize (similar to what was recently found in the Perfect 10/Rapidshare case) that when a site gives clear tools to let you remove specific infringing content, making a general claim does not fly.
Along those lines, however, it is worth noting that Google recently dropped a lawsuit against record label, Blues Destiny, in which it sought a declaratory judgment that just linking to content is not infringing. Google withdrew after Blues Destiny promised it wasn’t going to sue Google for infringement, but it might have been better to get that legal precedent in place.
Either way, sooner or later, it looks like we’re going to get another legal showdown over whether or not it’s legal for Google to just link to infringing material. When that case goes forward, it could be a defining moment in whether or not search engines, themselves, are actually legal. If BPI does sue — and loses — it could also open up some legal room for content specific search engines that aren’t deemed infringing as well.