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, 21 Feb 2011 @ 8:48pm

    Re:

    Vicarious liability? Possibly, as it IsoHunt did have means at hand to mitigate infringing activities, as well as having received a direct financial benefit from its activities as a website.

    Contributory liability? Almost certainly under Grokster as being an active participant that had the direct effect of encouraging/inducing infringement by third parties. Some might argue that Sony is controlling, but that argument was dismissed in a 9-0 decision by the Supreme Court.

    The more pressing question, as noted by Google in its brief, is whether or not the DMCA should have even been considered in the course of the litigation. Independent of the DMCA IsoHunt's activities appear to fall under "bread and butter" copyright infringement principles associated with secondary liability.

    A still further question to ask is whether or not a torrent site can exist without running afoul of copyright law? The answer is "yes", but to run such a site in a compliant manner would not be a real money maker absent some other way for the site to monetize what it is doing. What other means are available for monitization I leave to those who work at Techdirt.

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