Google Finally Gets Involved In Torrent Search Engine Lawsuit... But Just To Reject 'Red Flag' DMCA Violations

from the but-of-course dept

TorrentFreak is noting that Google has, perhaps for the first time, waded into any of the lawsuits concerning torrent search engines, filing an amicus brief in the ongoing IsoHunt appeal. In the past, other torrent search engines have been somewhat upset that Google has stayed quiet, noting that many of the arguments used against them could equally apply to Google. Google, of course, has stayed away because it goes to great lengths these days to avoid any appearance of "supporting piracy."

While TorrentFreak (and IsoHunt) seems surprised or disappointed by Google's actual amicus brief in the IsoHunt case, it's really not surprising. Google's participation here is entirely about the YouTube/Viacom lawsuit and appeal. What was really notable about the original IsoHunt ruling, was that it was the only real legal ruling that said that you could violate the DMCA even in absence of takedown notices. That is, it highlighted the idea of "red flag" awareness of infringement. This was the key issue in the YouTube/Viacom lawsuit. 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. So, I don't find it that "unexpected" that Google got involved, or filed the brief that it did. It's focused entirely on its own lawsuit here, and hoping that the appeals court will take away the one serious case that Viacom has in its pocket for the YouTube appeal.

Filed Under: copyright, dmca, red flags, torrents
Companies: google, isohunt, mpaa, viacom, youtube

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  1. identicon
    Anonymous Coward, 22 Feb 2011 @ 6:54am

    Re: Re:

    Thanks for the answer (I was the one that asked the question above).

    It seems clear to me that Fung is liable for inducement, contributory, and vicarious infringement. The district court found Fung liable under the Grokster inducement liability theory, and left the other two theories untouched as being unnecessarily duplicative--Fung is secondarily liable no matter which theory you analyze it under.

    Mike, on the other hand, has argued that Fung is not liable under any theory. I'm just curious if now that he's read Google's brief, he cares to change his stance. To me, and apparently to Google, the evidence overwhelmingly demonstrates Fung's liability. Evidence, mind you, that the district court characterized as wholly unrebutted.

    I'm curious if Mike is just defending Fung because of some innate need to defend all pirates no matter what. It certainly seems that way. IMO, if he were being intellectually honest, he would admit that Fung is a secondary infringer. The fact that he denies it in the face of such evidence leads me to believe that when it comes to piracy, the last thing he wants to be is intellectually honest.

    My understanding of why Sony is not controlling is that once you have knowledge of the infringement, you lose any safe harbor that Sony may have given you.

    As far as torrent search engines goes, I think the answer is that you could run one legally, but it would next to impossible to do so. The fact that 90%+ of torrents are infringing doesn't help. It'd be like trying to set a up a search engine that searches for naked pictures of children that are art and not pornography. Such pictures exist, but good luck setting a search engine that doesn't get you in trouble.

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