Would Google Be Liable Under The Pirate Bay Ruling?

from the answer-is-hazy dept

Michael Carrier, a law professor specializing in intellectual property law, was kind enough to let us know about a paper he recently wrote analyzing the Swedish court's ruling in The Pirate Bay Case, and seeing how the reasoning set forth might apply to two other services: Grokster and Google. Grokster, of course, was a key player in a similar US lawsuit, that eventually resulted in the service shutting down. While many believe that the Supreme Court said Grokster was illegal, in reality, the ruling on the case only found that Grokster could be liable as a third party. Grokster itself settled before the lower court could rule on the issue, though co-defendant Streamcast was eventually found liable.

Carrier's analysis suggests that the Swedish ruling over The Pirate Bay did not go into nearly enough detail on why it made its ruling. Many of the explanations are quite vague, and could be broadly applied to other services. The most interesting part of the paper looks at how Google would fare under the same conditions -- and it finds that while Google has some distinct differences from The Pirate Bay, one could read the ruling in such a way that it absolutely would apply to Google as well -- which has troubling implications. At the very least, it suggests that the Swedish court did not fully understand the technology or the implications of such a ruling, and was more influenced by the fact that it seemed like The Pirate Bay must be bad, and therefore decided to support that in the ruling. But without carefully highlighting why The Pirate Bay is different than Google, the ruling is too vague and potentially dangerous.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    GeneralEmergency (profile), Nov 13th, 2009 @ 9:35am

    Strategy note:

    At the very least, it suggests that the Swedish court did not fully understand the technology or the implications of such a ruling, and was more influenced by the fact that it seemed like The Pirate Bay must be bad, and therefore decided to support that in the ruling.

    Maybe next time rather than pick a name like "The Pirate Bay" (Pirates==bad), you call it "The Large Sad Eyed Puppy Bay" or something to that cuddly effect.

    And do Swedish Judges cower in the closet at home on Halloween?

     

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  2.  
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    Ima Fish (profile), Nov 13th, 2009 @ 9:36am

    This came out last 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 that, 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.

     

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  3.  
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    Anonymous Coward, Nov 13th, 2009 @ 9:47am

    Re:

    No, it is actually damn simple: How many torrents has TPB willingly removed after receiving copyright violation notices? ZERO. How many has google stopped link to? Thousands.

    The simple fact is that TPB is a non-cooperative body, unwilling to accept any responsiblity, and thus they have to be spanked like little children, legally.

    It's the biggest difference one from the other.

     

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  4.  
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    Anonymous Coward #2, Nov 13th, 2009 @ 9:50am

    Re: Re:

    Well, to be fare, they have a policy that clearly states this. They don't want to "censor", etc. It's a noble thought, but unfortunately that's not how the world works and thus, TPB gets sued and Google does not.

     

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  5.  
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    The Infamous Joe (profile), Nov 13th, 2009 @ 9:54am

    Re: Re:

    Well, I can counter your made up numbers with some of my own. If the pirate bay points to 100,000 torrents for illegal downloads and takes zero of them down, but Google points to 1,000,000 illegal torrents and takes 50% of them down, who is doing more "harm"?

    Fun, isn't it?

     

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  6.  
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    bshock, Nov 13th, 2009 @ 9:58am

    It's an interesting confirmation of what I'm sure many people expected from the theoretical case.

    However, real-world law operates on economic principles, roughly equivalent to a biological food chain. That is, predators only attack what they have a reasonable expectation of killing.

    Pirate Bay was a young gazelle, while Google is an adult elephant.

     

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  7.  
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    d-rock, Nov 13th, 2009 @ 9:58am

    It's the american way.

    "non-cooperative" != illegal
    They are protecting their business by taking advantage of a system of laws put in place in other countries - NOT AMERICAN LAWS. Google does the same thing TPB does, plain and simple.

    I think Google should sue the swedish court system for being more corrupt than Bernie Madoff.

     

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  8.  
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    Anonymous Coward, Nov 13th, 2009 @ 10:00am

    Re: Re:

    parent AC is right. why any of you guys think Google should be liable is ridiculous. they're a legitimate business trying to lead people to lawful material. they're not telling rights holders to fuck off -- they regularly work with rights holders. that is the difference, and it's why mike's scare-tactic sensationalism is bullshit.

    inducement liability (grokster) is the difference between saying "LOOK, WE HAVE ALL THIS ILLEGAL SHIT... COME AND GET IT!!!" and "Oh, there's illegal shit there? not anymore..." web geeks never understand intent, and they never understand circumstantial evidence.

     

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  9.  
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    Anonymous Coward, Nov 13th, 2009 @ 10:00am

    Re: Re:

    I see you're another person who doesn't actually understand what a torrent file is.

     

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  10.  
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    PaulT (profile), Nov 13th, 2009 @ 10:02am

    Re: Re:

    So, you're arguing that it's fine for any company to break the law as long as it makes a token gesture of compliance? Interesting...

    Let me put it this way, I just searched for "transformers 2" on TPB and Google. TPB returned around 210 results. Searching ""transformers 2" filetype:torrent" on Google returns 92,900 results.

    Why do you think that Google is a lesser "threat" than TPB despite offering only a fraction of links? Why should they be treated differently if the mere link to a torrent is infringement? If the link itself is not damaging enough for Google to be attacked, why should TPB be punished?

     

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  11.  
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    Anonymous Coward, Nov 13th, 2009 @ 10:09am

    Re: Re: Re:

    Let me put it this way, I just searched for "transformers 2" on TPB and Google. TPB returned around 210 results. Searching ""transformers 2" filetype:torrent" on Google returns 92,900 results.

    Paul, here's the other key:

    the 92,900 results pointed to pages that pointed to the 210 results your saw on TPB. TPB removes the torrents, and suddenly Google has zero results.

    it isn't like Google is pointing to 92,900 seperate torrents. Your example certainly gollifies the numbers, but the underside is the same (and so is the source of the files).

     

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  12.  
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    Ralph-J (profile), Nov 13th, 2009 @ 10:23am

    Main purpose of a service

    It probably comes down to what is considered the main purpose of a product or service. If its main purpose is to provide links to material that is considered illegal, then they're liable. If the illegal use is a by-product of the main search engine functionality, then it's bad luck for the rights holders. The trick is to bend the interpretation of existing laws to fit this broken thinking. If Google started offering a specialized File search channel alongside Images/News and other search channels, you can bet they'd be sued very quickly. Strangely enough, "filetype:torrent" seems to be working as an advanced search operator in Google queries, unlike say "filetype:mp3" and "filetype:avi".

     

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  13.  
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    ChimpBush McHitlerBurton, Nov 13th, 2009 @ 10:28am

    Re: Strategy note:

    "And do Swedish Judges cower in the closet at home on Halloween?"

    Yes. Yes they do.

    CBMHB

     

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  14.  
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    PaulT (profile), Nov 13th, 2009 @ 10:47am

    Re: Re: Re: Re:

    "the 92,900 results pointed to pages that pointed to the 210 results your saw on TPB. TPB removes the torrents, and suddenly Google has zero results."

    Bullshit.

    There are hundreds of torrent sites listed via the Google search. The top ranked is Torrentreactor (which lists mainly usenet and private trackers on the first page, not TPB). In fact, none of the results I could see on the first 4 pages go directly to TPB, although granted some would go there eventually.

    Besides, even if you were correct about TPB being the source for all of the results - what do you really think would happen to that search if TPB took down all their torrents? You really are fooling yourself if you think it's going to result in zero results - the torrents would be rehosted elsewhere. The tool people would use to find the new hosts? Google.

    The RIAA played this game of whack-a-mole before with Napster - it didn't end piracy but resulted in new and interesting ways to transfer files that did not suffer from the weaknesses of Napster. Why do you think this will end differently? ...and again, why do you feel that one rule should apply to TPB and another to Google just because one company is defiant and the other makes a totally ineffective token gesture toward compliance?

     

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  15.  
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    Overcast (profile), Nov 13th, 2009 @ 11:14am

    it isn't like Google is pointing to 92,900 seperate torrents. Your example certainly gollifies the numbers, but the underside is the same (and so is the source of the files).

    So what if it was only pointing to 210 results as well? Wouldn't it then be equally as liable?

    Then we go on to the ISP's liability in this - then behind the ISP we have the Telco - behind the Telco we have Government rules and regulations that give these ISP's and Telecom companies the 'license' to operate. Shouldn't they all be equally liable?

    What about other search Engines? Bing, Yahoo, etc?

    And actually the first hit using Google to search for the string ""transformers 2" filetype:torrent" was on Isohunt.com

    Actually - the Pirate Bay doesn't show on the first Google page results at all.

    http://www.google.com/search?hl=en&safe=active&q=%22transformers+2%22+filetype:torrent&a mp;start=0&sa=N

    and also on the search "transformers 2 torrent" Just like that in Google - again, the first page does not include hits from The Pirate Bay.

     

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  16.  
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    Anonymous Coward, Nov 13th, 2009 @ 12:20pm

    Dam!

    I can dl Transformers 2 now? Hell yah! Thanks, time to fire up the downloader! w00t!! Keep up the good work guys.. Thanks a million, been waiting on this one.

     

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  17.  
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    Jester, Nov 13th, 2009 @ 1:18pm

    I'm lost

    Google is an index of other peoples shit. Google does not hold the .torrent file on their servers. Am i the only one that thinks that is the MAJOR difference. Possesion is 9/10 of the law. Thats like saying because you write a letter to the police telling them where i hid a body because i left it out in the open that you are guilty of murder too. Morons. Did you also notice even with the file type search over 80% of the links on a google result take you to a page not the actual torrent. Hmmmmmm so google is indexing the page about the torrent, holy shit its doing its job. Grow up and quite bitchin about this whole take down google crap. Again TPB has a .torrent on its site and provides tracker services to connect with people google does neither of these. not sure how many times i have to say it and i am sure someone will bitch and tell me i am wrong.

     

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  18.  
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    1DandyTroll, Nov 13th, 2009 @ 1:35pm

    Apparently Michael Carrier must suck.

    Oh, right, I guess I ought to explain why. Well Swedish legal bone heads, all experts in their fields of swedish law, and IP law, concluded that the court explanation was as good as it always should be.

    Pretty much every one who said the explanation was complete gobbledegook was attacked more on the personal level rather than the actual arguments made by the critics of the court's explanation.

    Even if one considers that those legal experts reflected upon stuff according to the specific, flawed, context that they used, and then not considering the more personal attacks of the critics, the court's explanation still doesn't follow the european union's rules. Much in the swedish justice system doesn't seem to work according to the eu rules actually. Just the other week a person who came to the aid of an elderly lady being strangled got a longer prison sentence than the actually culprit for defending the old lady, and all the while the "white knight's" defense attorney thought the prosecutor was completely right, but was very bewildered that his client only one year, because he thought his client should've gotten a longer sentence. The culprit, the one who tried his best to strangle the old lady to death got sentenced to a couple of month's, apparently he got a reduced sentence because he was hit by the old lady's rescuer, and check this, twice, instead of just once which the court could've lived with.

    Sweden, the land of the free and bewildered court, where tradition trumps reason, and your defense attorney is, by tradition, already on the prosecutor's side.

    Am I sounding too dramatic? From my understanding the reality was more dramatic, in a droll sort of way. Did you know that the swedish court never, ever, goes against established traditions, well except in the TPB case, of course, where they set aside the traditional common rules for being able to allow for higher statutory damages, without actual proof that supports the court's explanation as to why.

     

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  19.  
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    RD, Nov 13th, 2009 @ 2:11pm

    bwahahaha

    "the 92,900 results pointed to pages that pointed to the 210 results your saw on TPB. TPB removes the torrents, and suddenly Google has zero results."

    hahahahaha what a colossal FUCKTARD you are. TPB is not the ONLY torrent site on the internet you know, not EVERY torrent is ONLY found on TPB. You thoroughly deserve to be called out on this, you are a complete and utter fucking corporate shill moron.

     

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  20.  
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    Anonymous Coward, Nov 13th, 2009 @ 2:36pm

    Re: I'm lost

    It's hard to take you seriously when you don't understand both how a torrent works and how TPB works.

    You'll have to say it infinite times until you spend a few minutes to stop being ignorant.

     

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  21.  
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    Bradd, Nov 13th, 2009 @ 3:20pm

    @Jester

    There is no difference between a .torrent and a hyperlink. They both have to be downloaded to your computer so a program can make them work and they both point to where the content is stored.

     

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  22.  
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    vyvyan, Nov 13th, 2009 @ 3:21pm

    Re: I'm lost

    it doesn't matter who holds the torrent files, because torrent files are not property of RIAA/MPAA. What TPB are being held liable for is that they aid piracy. They are as guilty as google.

    Again "Possesion is 9/10 of the law" who says this? Is this law made in your backyard where you're allowed to win all baseball games?

    You don't know shit about torrents, all you need to download is that "hash" of torrent file, like 19abc3ebf9ca970b72520f4eb430d93e340b368e for transformers 2. You can add this hash for download and add one or more of public tracker like TPB, opentorrent, h33t. You can download just by that. Clients like deluge already have this option for a long time. The reason that peers get exchanged is because the same *hash* is tracked by myriad of trackers.

    I know you would not hold only (blind) trackers who don't know shit about content behind that hash, and indexers liable but software and technology also liable.

    If you already know that with your innocence about technology you're sure to bitched around, why are you bitching in the first place.

     

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  23.  
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    Lennart Renkema, Nov 13th, 2009 @ 4:54pm

    Are The Pirate Bay and Google basically the same?

    Summary
    Both technically and structurally, The Pirate Bay and Google are very different. The argument put
    forward by the defence that The Pirate Bay essentially provides the same services as Google is
    therefore not true. By calling upon this argument, The Pirate Bay hopes to be awarded the same
    kind of legal protection that the Electronic Commerce Directive offers to Internet Service Providers.
    Besides the fact that this legal protection probably does not apply to search engines in the first
    place, the fundamental differences in set-up between The Pirate Bay and Google make resorting
    to these provisions seem like a far stretch.

    More: http://www.futureofcopyright.com/kb/45.pdf

     

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  24.  
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    John Stephens, Nov 15th, 2009 @ 10:30pm

    Life isn't fair, get used to it.

    For anyone who thinks Google is not guilty, go read a headline about Google digitizing books without the authors permission. We're not talking about one or two, but rather millions of books; however we're not talking about sueing that elephant.

    Google and TPB both index listings, one indexes pages, the other torrents, both are links to content held somewhere else.

    The sad fact is what is legal in the real world is often illegal in the digital world. ie. Knocking on someones door is legal, pinging someones network is illegal, they are the same basic act.

     

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  25.  
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    Anonymous Coward, Nov 16th, 2009 @ 2:38am

    Google can be used the same way as TPB, do a little research. And anyone who thinks you take TPB down and all the torrent links go away doesn't think there is a thousand other sites out there.

    What's really important here is the arguement of what a torrent is. A torrent is not the file(s) itself. And I can download the torrent from google too, again do some research. Aid and abetting might be the better argument but the idea that they have any illegal files themselves is the big problem. A torrent file is not illegal.

     

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  26.  
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    Willing Participant, Dec 1st, 2009 @ 3:16am

    The guy a while back said possession is 9/10ths of the law? sweet, they live in sweden retard. Different laws.

    Also, TPB do not possess ANY illegal file. The .torrent file, is a created file, by an individual, who therefore owns the rights to that file, and publishes it on the internet, they need to either sue the holder of the copyrighted file itself(the host), or get over themselves... Suing TPB and not websites such as Google, Bing, Yahoo or even Ask, is a flawed and never-ending argument starter.. Anti-Piracy is a joke, and they need to start being fair or it will never progress past that point..

     

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