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Google is not similarly exposed to liability just because its search function can be used to facilitate infringement. The issue here is one of potential liabil
by grellas 17y ago
Google is not similarly exposed to liability just because its search function can be used to facilitate infringement.
The issue here is one of potential liability for contributory infringement.
When a party's technology is being primarily used for infringing purposes, and its independent, non-infringing uses are at best marginal, such a party can be held liable for contributory infringement of the copyrights at issue. That in essence appears to be what the court concluded here.
Contributory infringement, though, does not extend to technologies that can only incidentally be used for infringing purposes - were it otherwise, then any technology involved in facilitating an infringing use could be swept in (e.g., the manufacturers of hardware devices used to play the infringing material).
This line of legal reasoning has gradually evolved from the 1980's Betamax case through Napster to a variety of iterations in the modern law. It is a complex area of law but, in essence, it defines a level of culpability by which the law deems it fair to impose liability on a party not directly infringing on copyrighted materials but whose technology facilitates such infringement. Here, the court concluded that IsoHunt was sufficiently culpable to be held liable in spite of the fact that it can be used for innocent purposes as well.
Google's search function, on the other hand, obviously has major uses apart from those facilitating copyright infringement and Google is nowhere close to being a contributory infringer even though its technology might be misused for this purpose.
- jellicle 17y agoBut Google's business is actually 99.99% infringing. Everything is copyrighted, including but not limited to this website. (Under current U.S. law, Federal government publications are nearly the only thing not copyrighted.) In no case has the copyright owner expressed permission for you to copy the copyrighted text to your computer. And yet, that is very very close to 100% of Google's business - locating copyrighted texts and sending users to them in order for those users to copy them, presumably illegally, to their computers. Only in the very rare case (.gov websites, users finding their own websites) is the user not infringing copyright. Nor is it possible for the user to determine whether he/she is infringing copyright; for example, the text on a .gov website could be written by a government contractor and therefore be copyrighted.
- grellas 17y agoI was not trying to defend the current law or any of its possible inconsistencies but only to give a sense of how it applies to this type of situation - as that law is currently interpreted, there is a near-zero risk that Google's search business will be held to create liabilities for contributory infringement. That doesn't mean the law is correct and people can reasonably differ on what is or isn't fair under copyright (or even whether copyright should exist) - but that argument is a philosophical one and not one for explaining what the current law is.
- vidarh 17y agoThe copyright owner "expressed permission" for a limited degree of copying by making the content available on a publicly accessible website in a form intended for distribution and not utilizing any means to restrict the copying in the first place. Good luck finding any judge that'd agree with you that Google's business is "99.9% infringing".
- metabrew 17y agoIt's worth reading this* paper by the EFF about legal exposure of p2p developers, it talks about contributory infringement and related topics. * http://www.eff.org/wp/iaal-what-peer-peer-developers-need-know-about-copyright-law http://www.eff.org/wp/iaal-what-peer-peer-developers-need-kn...
- bluedanieru 17y agoHow is it a complex area of law? It seems to me the law is left ambiguous enough that it can be used to prosecute at the whims of the highest bidder, while making sure that the right parties are never held to the same standard.
- jacquesm 17y agoUANAL but Grellas is. If he says it's complex I take his word for it.
- freetard 17y ago> When a party's technology is being primarily used for infringing purposes I guess that means google image search should be forbidden too as most images are copyrighted.