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 @ 7:13am

    Re: Re: Re:

    It is very clear that Fung is liable. But finding a torrent site owner guilty of anything pokes huge holes in the Universal Techdirt Torrent Theory (UTTT), which suggests that torrent site owners some how are exempt from basic laws because they don't actually host the content, they just facilitate it's distribution.

    The only way for a torrent site to be legal would require that they are never aware of what is on their site, and to do so would require them to never receive a single DMCA or copyright infringement notice. As soon as they have the notice, they are aware and thus, can't easily avoid the liablity.

    As for "secondary infringer", Mike likes to bury that idea by calling people like Fung "third parties". They didn't create the torrent, they didn't post it, they don't host it, so they clearly have nothing to do with copyright material. It isn't clear who he thinks is a secondary infringer, because the person pushing the torrent is the primary. Perhaps the person receiving it is secondary.

    Google knows which side of the bread the butter is on (they indexed the bread). They know that much of their own business models depend on violating copyright repeatedly and often, but they hope that the standards for copyright violation are moved back to wherever they are operating, so they don't have to take action. But the red flag issue is one they cannot move away from, and could really change the operation of google images, youtube, and other similar sites.

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