HideOnly 2 days left to get your copy of the CIA's declassified training game by backing CIA: Collect It All on Kickstarter »
HideOnly 2 days left to get your copy of the CIA's declassified training game by backing CIA: Collect It All on Kickstarter »

Press Finally Realizing That Google Can Do Anything The Pirate Bay Did

from the nice-victory dept

With the entertainment industry all excited about the supposed "win" in The Pirate Bay case in Sweden, it appears that some in the media are recognizing what plenty of people have been pointing out for years: you can find most of the same stuff via Google. This was actually a point brought up during the trial, to which the industry responded that Google took down links on request -- which is true, but doesn't change the fact that similar links pop back up just as quickly. At some point, eventually, you'll have to believe that the industry will go after Google for this, and Google will have a much stronger defense. It certainly doesn't violate the Grokster made-up "inducement" standard. It's pretty clearly protected by DMCA safe harbors otherwise. So, what will the industry come up with next? It'll be some novel legal theory, certainly, but somehow it won't be a novel business model. The industry doesn't do that sorta thing.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Willton, 21 Apr 2009 @ 5:02pm

    Inducement is made-up?

    Um, Mike, I've got news for you: theories of secondary liability and indirect infringement have been around long before the Grokster case. The Supreme Court did not create the inducement theory out of whole cloth; it's been around at least as long as The Patent Act of 1952. The Supreme Court merely applied the doctrine of inducing infringement to copyright. There was nothing "made-up" about it, and it certainly was not an earth-shattering development.

    Oh, and before you go on some diatribe about judicial activism and courts making up law where Congress did not, let me remind you that the fair-use doctrine, which I know you like, is a judge-made doctrine that existed and was enforced long before it was codified in the U.S. Code in 1976.

    reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 21 Apr 2009 @ 5:46pm

      Re: Inducement is made-up?

      Um, Mike, I've got news for you: theories of secondary liability and indirect infringement have been around long before the Grokster case.

      Indeed, but it's not in copyright law. Please point it out to me.

      The Supreme Court did not create the inducement theory out of whole cloth; it's been around at least as long as The Patent Act of 1952. The Supreme Court merely applied the doctrine of inducing infringement to copyright. There was nothing "made-up" about it, and it certainly was not an earth-shattering development.

      Obviously, we disagree. It is not in copyright law anywhere. The fact that it's used in patent law is meaningless. The two are quite different, and the Supreme Court simply made up the fact that it exists in copyright law.

      I do find that earth shattering and wrong.

      Oh, and before you go on some diatribe about judicial activism and courts making up law where Congress did not, let me remind you that the fair-use doctrine, which I know you like, is a judge-made doctrine that existed and was enforced long before it was codified in the U.S. Code in 1976.

      Um, have I ever complained about "judicial activism"? Nope, but why let that stop you from saying that.

      However, even so, I'm not in favor of judges making up laws as they go, and that was true even of fair use before it was codified in law. The fact that it was used for good purposes in the past doesn't make it any better.

      The simple face is that the Supreme Court made up a standard that does not exist in the law in any way. It is made up.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 21 Apr 2009 @ 7:10pm

        Re: Re: Inducement is made-up?

        Obviously, we disagree. It is not in copyright law anywhere. The fact that it's used in patent law is meaningless. The two are quite different, and the Supreme Court simply made up the fact that it exists in copyright law.

        I do find that earth shattering and wrong.


        In view of the above I am interested in your take on Universal v. Sony, the "Betamax" case, wherein the Supreme Court reached across the "IP aisle" and incorporated into copyright law the provisions of patent law pertaining to "non-staple articles of commerce suitable for a substantial non-infringing use".

        reply to this | link to this | view in chronology ]

        • icon
          Mike (profile), 22 Apr 2009 @ 1:18am

          Re: Re: Re: Inducement is made-up?

          In view of the above I am interested in your take on Universal v. Sony, the "Betamax" case, wherein the Supreme Court reached across the "IP aisle" and incorporated into copyright law the provisions of patent law pertaining to "non-staple articles of commerce suitable for a substantial non-infringing use".

          The reasoning behind the Betamax ruling wasn't simply pulling from patent law, but pointing out that a product simply is not liable for infractions done by users, because that is just common sense. The Grokster decision changed that standard with no justifiable reason.

          reply to this | link to this | view in chronology ]

          • identicon
            Willton, 22 Apr 2009 @ 6:11am

            Re: Re: Re: Re: Inducement is made-up?

            The reasoning behind the Betamax ruling wasn't simply pulling from patent law, but pointing out that a product simply is not liable for infractions done by users, because that is just common sense. The Grokster decision changed that standard with no justifiable reason.

            Bullshit, Mike: according to you, that shouldn't matter. Just like the "inducement" standard of Grokster, the "significant non-infringing use" standard was not in the copyright statute before the Betamax case, and was thus "made-up." You're rationalizing the Betamax case just because you like the result, even though the Betamax court did the exact same thing that the Grokster court did: pull a standard from patent law and apply it to copyright law.

            If you want to debate the merits of an "inducement" standard of contributory infringement, fine, but don't base your position on some half-baked theory that the Supreme Court created the standard out of thin air.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Apr 2009 @ 10:17pm

              Re: Re: Re: Re: Re: Inducement is made-up?

              don't base your position on some half-baked theory that the Supreme Court created the standard out of thin air.

              As applied to copyright, they certainly did. Your arguments to the contrary are so lame they make me wonder what you're on.

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 22 Apr 2009 @ 9:40am

            Re: Re: Re: Re: Inducement is made-up?

            The reasoning behind the Betamax ruling wasn't simply pulling from patent law, but pointing out that a product simply is not liable for infractions done by users, because that is just common sense.

            Just like you do not convict a gun used in a robbery (you convict the person), one does not hold a product liable for infringement (you hold the infringing individual liable).

            A key point you miss in your reading of the "Betamax" case it the subtle (and questionable) shift in the copyright holder's burden of proof, and the court's observance that the copyright holder has not presented evidence sufficient to establish that the product was being employed to infringe copyright.

            I submit that had the case before the court been Universal v. The Pirate Bay the outcome would have been a 9-0 decision against the defendant. This would, of course, have changed the landscape entirely about products being used to facilitate copyright infringement in copious numbers. Were it not for the borrowing of the "staple item" aspect from patent law, coupled with the shift in the burden of proof, Sony may very well have found itself in a qite untenable position.

            Yes, torrents are proving to be quite useful for the transfer of authorized content, but until such time as this becomes the predominant use of torrents these lawsuits will continue and liability repeatedly found to be present.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Apr 2009 @ 10:25pm

              Re: Re: Re: Re: Re: Inducement is made-up?

              A key point you miss in your reading of the "Betamax" case it the subtle (and questionable) shift in the copyright holder's burden of proof, and the court's observance that the copyright holder has not presented evidence sufficient to establish that the product was being employed to infringe copyright.

              Hold on just a minute there. I remember that case and the industry presented LOTS of evidence that basically proved beyond any reasonable doubt that VCR's were being used to infringe copyright (despite your assertion to the contrary). The court did not rule that VCR's were OK because it couldn't be proven that they weren't used for infringement. In fact, the court accepted that they were. But the court said that they were OK because they also had other uses.

              Your claim to the contrary strikes me as a big lie. Did you really think no one here would know anything about the case and you could get away with it? Think again.

              reply to this | link to this | view in chronology ]

      • identicon
        Willton, 21 Apr 2009 @ 10:50pm

        Re: Re: Inducement is made-up?

        Indeed, but it's not in copyright law. Please point it out to me.

        From the legislative history of Section 501 (Infringement of Copyright) of the Copyright Act of 1976:

        "The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement, committed by an independent contractor, such as an orchestra laeder. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public performance right.

        http://en.wikisource.org/wiki/Page:H.R._Rep._No._94-1476_(1976)_Page_159.djvu
        http://en.wik isource.org/wiki/Page:H.R._Rep._No._94-1476_(1976)_Page_160.djvu

        Vicarious liability and contributory infringement do not have to be in the copyright statute in order to be enforceable. Both are staples of tort law, and copyright infringement is an action in tort. Just because there is no statutory vehicle in Title 17 for contributory infringement does not mean that it has no basis in law.

        Obviously, we disagree. It is not in copyright law anywhere. The fact that it's used in patent law is meaningless. The two are quite different, and the Supreme Court simply made up the fact that it exists in copyright law.

        I do find that earth shattering and wrong.


        Again, there was no making-up of anything. Secondary liability and indirect infringement are common law concepts that have been around for ages. Applying age-old tort concepts to an action in tort should not come as a surprise to anybody. And while the proof of infringement in patent law is quite different from that in copyright law, their shared nature as intellectual property law allows concepts to be shared by both fields of law (see, e.g. right of first sale doctrine, which is codified in the Copyright Act but not in the Patent Act, and yet applies to both).

        However, even so, I'm not in favor of judges making up laws as they go, and that was true even of fair use before it was codified in law. The fact that it was used for good purposes in the past doesn't make it any better.

        In that case, feel free to move to a civil law country like France, where courts have no such power to make law where the legislature has not spoken and every tiny legal nuance must be effected through the legislature. Personally, however, I'd rather have a system that is capable of being malleable enough to meet changing social needs and improved understanding by allowing judges the leeway to make judgments and create precedent that supplements the intent of the legislature or reaches equitable results. Such is the common law system that we adopted from England and have here in the United States.

        The simple face [sic] is that the Supreme Court made up a standard that does not exist in the law in any way. It is made up.

        No, that's what you would have everyone believe.

        reply to this | link to this | view in chronology ]

        • icon
          Mike (profile), 22 Apr 2009 @ 1:24am

          Re: Re: Re: Inducement is made-up?

          From the legislative history of Section 501 (Infringement of Copyright) of the Copyright Act of 1976:

          Read it again. More carefully this time, because that doesn't say what you seem to think it's saying.

          Vicarious liability and contributory infringement do not have to be in the copyright statute in order to be enforceable. Both are staples of tort law, and copyright infringement is an action in tort. Just because there is no statutory vehicle in Title 17 for contributory infringement does not mean that it has no basis in law.

          That's not answering the question. But it's a neat lawyer's trick.

          Again, there was no making-up of anything. Secondary liability and indirect infringement are common law concepts that have been around for ages

          But are not found in copyright law. Hence, they were added via this decision.

          Applying age-old tort concepts to an action in tort should not come as a surprise to anybody.

          It should when it contradicts both previous precedent and common sense.

          In that case, feel free to move to a civil law country like France, where courts have no such power to make law where the legislature has not spoken and every tiny legal nuance must be effected through the legislature. Personally, however, I'd rather have a system that is capable of being malleable enough to meet changing social needs and improved understanding by allowing judges the leeway to make judgments and create precedent that supplements the intent of the legislature or reaches equitable results. Such is the common law system that we adopted from England and have here in the United States.

          Willton, trying being a little less pompous next time. There's a HUGE difference between saying that judges shouldn't make up laws and a court system should be malleable enough to meet changing social needs. If you really think it's one or the other... um... wow.

          No, that's what you would have everyone believe.


          It's not what I would have everyone believe. It's what plenty of folks (including many copyright experts) do believe to be quite true. The ruling was quite shocking to many in the copyright world for a very good reason.

          reply to this | link to this | view in chronology ]

          • identicon
            Willton, 22 Apr 2009 @ 6:52am

            Re: Re: Re: Re: Inducement is made-up?

            Read it again. More carefully this time, because that doesn't say what you seem to think it's saying.

            "The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement, committed by an independent contractor, such as an orchestra laeder. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers."

            How much clearer does it need to be? The framers of the Copyright Act of '76 considered eliminating vicarious liability and indirect infringement with regard to copyright law and chose not to do so. If you don't understand that to be a clear sign that vicarious liability and indirect infringement were intended to be applicable to copyright, then you need your head examined.

            But are not found in copyright law. Hence, they were added via this decision.

            No they weren't. Read Fonovisa, Inc. v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996). It will give you a nice history of secondary liability in copyright.

            reply to this | link to this | view in chronology ]

            • identicon
              Not Mike, 22 Apr 2009 @ 9:15am

              Re: Re: Re: Re: Re: Inducement is made-up?

              read the next line:

              To be held a related or vicarious infringer in the case of performing rights, a defendant must either actively operate or supervise the operation of the place wherein the performances occur, or control the content of the infringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance.

              It may be worth noting, too, that this is all talking about performances but, as near as I can tell, file-sharing has become a question of distribution. I imagine that at the least we would need different measures than those presented here.

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 22 Apr 2009 @ 10:52pm

              Re: Re: Re: Re: Re: Inducement is made-up?

              How much clearer does it need to be? The framers of the Copyright Act of '76 considered eliminating vicarious liability and indirect infringement with regard to copyright law and chose not to do so. If you don't understand that to be a clear sign that vicarious liability and indirect infringement were intended to be applicable to copyright, then you need your head examined.

              If you can't see that "inducement" is mentioned nowhere in there then you're the who needs a head examination.

              reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 22 Apr 2009 @ 10:49pm

          Re: Re: Re: Inducement is made-up?

          In that case, feel free to move to a civil law country like France

          If anyone needs to move to another country, it's Willton. But I think I can guess how that would go...

          Willton: Hello, I'm a lawyer from America. Can I move to your country?

          Immigration Official: Oh hell no!

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2009 @ 10:10pm

      Re: Inducement is made-up?

      The Supreme Court did not create the inducement theory out of whole cloth; it's been around at least as long as The Patent Act of 1952. The Supreme Court merely applied the doctrine of inducing infringement to copyright. There was nothing "made-up" about it, and it certainly was not an earth-shattering development.

      You know what else has bee around a long time? Capital punishment. The Supreme Court didn't make that one up either. But if they were to come out with a ruling that copyright infringement was properly punished by death under copyright law then I'm afraid I would have to accuse them of creating that theory out of whole cloth, even if capital punishment did exit beforehand.

      Oh, and before you go on some diatribe about judicial activism and courts making up law where Congress did not, let me remind you that the fair-use doctrine, which I know you like, is a judge-made doctrine that existed and was enforced long before it was codified in the U.S. Code in 1976.

      Then why was it codified? Because it typically was NOT previously enforced and the rest of the 1976 copyright changes were set to greatly expand copyright in way that would have invalidated previous ruling anyway. But if you'd like to cite the Supreme Court ruling that established it before 1976, then be my guest.

      reply to this | link to this | view in chronology ]

      • identicon
        Willton, 22 Apr 2009 @ 11:20pm

        Re: Re: Inducement is made-up?

        You know what else has bee around a long time? Capital punishment. The Supreme Court didn't make that one up either. But if they were to come out with a ruling that copyright infringement was properly punished by death under copyright law then I'm afraid I would have to accuse them of creating that theory out of whole cloth, even if capital punishment did exit beforehand.

        Here's why your analogy lacks merit: Capital punishment has never been applied to copyright. Ever. In contrast, secondary liability has been applied to copyright as early as 1963. See Shapiro, Bernstein and Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963). Therefore, theories tied to secondary liability (such as inducing infringement) are fair game to be applied to copyright law when appropriate. If you want to argue that it's not appropriate to apply inducement to copyright infringement, that's fine, but acting like the standard came out of left field is disingenuous.

        Then why was it codified? Because it typically was NOT previously enforced and the rest of the 1976 copyright changes were set to greatly expand copyright in way that would have invalidated previous ruling anyway.

        Really? Do you have any proof of this position? Because that's definitely not apparent from the legislative history of the Act. I think your full of shit, but feel free to show me otherwise.

        But if you'd like to cite the Supreme Court ruling that established it before 1976, then be my guest.

        I'll do you one better: Folsom v. Marsh, 9 F. Cas. 342 (U.S. Circuit Court, Dist. of Mass. 1841), written by Supreme Court Justice Joseph Story (who was riding circuit at the time), is the seminal case on fair use.

        Sadly, the reasoning behind codifying fair use doctrine in the 1976 Act is, based on the legislative history, rather unclear. Other than insisting that it was doing no more than codifying preexisting judicial precedents, Congress provided the courts with surprisingly little guidance about how to apply the new provision to future cases. While Section 107 has a number of situations and factors that courts must consider, Congress expressed a desire to give courts the freedom to adapt fair use doctrine to particular situations on a case-by-case basis.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 23 Apr 2009 @ 1:36am

          Re: Re: Re: Inducement is made-up?

          Here's why your analogy lacks merit: Capital punishment has never been applied to copyright.

          Neither had inducement.

          See Shapiro, Bernstein and Co. v. H.L. Green Co., 316 F.2d 304 (2d Cir. 1963). Therefore, theories tied to secondary liability (such as inducing infringement) are fair game to be applied to copyright law when appropriate.

          Again, that case said nothing about inducement. Why are you trying to misrepresent it?

          If you want to argue that it's not appropriate to apply inducement to copyright infringement, that's fine, but acting like the standard came out of left field is disingenuous.

          Maybe not politically, but definitely legally so. Denying that is disingenuous.

          reply to this | link to this | view in chronology ]

  • identicon
    Ima Fish, 21 Apr 2009 @ 5:07pm

    I sent this in months ago, back in February. The IFPI stated exactly why it had not sued Google. It was not because Google was somehow different from the Pirate Bay or that Google was somehow exempt under the law. The sole reason the IFPI gave is because, unlike the Pirate Bay, Google plays along:
    "We have approached Google and told them about this. We have asked them if they want to be our opponents or our partners. We have ten people in London working with them on a daily basis [to make illegal music unavailable]. If Google had indicated they would be our opponent, we would have taken them to court."

    In other words, if the Pirate Bay is guilty, so is Google. But Google gets a reprieve as long as it plays the IFPI's game. But I can't help but wonder how far Google will bend over to help the IFPI.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Apr 2009 @ 6:25pm

    gimme

    gimme the money! google has a lot, they can afford it!

    reply to this | link to this | view in chronology ]

  • identicon
    Comboman, 21 Apr 2009 @ 7:37pm

    torrent search is only half

    Torrent search is only half of what Pirate Bay does. The more important half (that can't be replaced with Google) is its torrent tracker.

    reply to this | link to this | view in chronology ]

  • identicon
    Tor, 22 Apr 2009 @ 12:08am

    re: torrent search is only half

    Torrent search is only half of what Pirate Bay does. The more important half (that can't be replaced with Google) is its torrent tracker.

    This is one the parts I found most troublesome in the Pirate Bay verdict. It says that even the illegal acts of "making available" committed by users of other torrent file archives than piratebay.org should be considered in the Pirate Bay case if the torrent files of those users contain a reference to the Pirate Bay tracker.

    Please compare their website:

    1) Pirate Bay gets money from ads (although they claim most of it is for covering their costs)
    2) Pirate Bay has a policy that torrent file descriptions and file names should correspond to the contens of the files that the torrent files link to. In theory this makes it possible (although maybe not in practice due to all work required) to clean the site from torrent files that seem to refer to copyrighted content.

    ... to their tracker:

    1) Pirate Bay gets no financial benefits from providing a tracker
    2) The communication with the tracker contains no reference to meta data about the files shared (no descriptions, no file names) - only a unique hash (in essence a numerical code) for each file. This makes it very difficult to know what files are being shared, and without access to the torrent files (which one wouldn't have if they were downloaded from somewhere else) it's theoretically impossible.

    If anything it would make more sense to criticize their web page than their tracker, since the latter is completely neutral to and contains no information about what is being shared. If someone would like to provide an open tracker only for legal sharing it wouldn't be possible for them to hinder it from being used also for illegal sharing, so introducing a liability for providing an open tracker service rules out any use of the bittorrent protocol.

    I think the court shows a quite good understanding of the bittorrent protocol in their verdict, but I think they failed to comprehend some of the aspects explained above.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Apr 2009 @ 11:05pm

      Re: re: torrent search is only half

      In theory this makes it possible (although maybe not in practice due to all work required) to clean the site from torrent files that seem to refer to copyrighted content.

      That would be EVERYTHING. Copyright is automatic. Do you not understand that? Licensing, though, is a whole other thing. And file names rarely convey licensing status.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Apr 2009 @ 9:06am

    hehe....you can always tell when someone is grasping at straws when they argue about the argument rather than the point of the argument.

    reply to this | link to this | view in chronology ]

  • identicon
    Tor, 22 Apr 2009 @ 1:03pm

    Cartoon

    Cartoon commentary:
    http://www.caglecartoons.com/viewimage.asp?ID={AC7D2177-A870-418E-ACB8-ABF0EBD1E9B3}

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.