In what seems like a role reversal, Google has filed a lawsuit against Blue Destiny Records in an attempt to assert that it has not infringed the record label’s copyrights. Blue Destiny Records had previously sued Google but then withdrew the suit, saying that it would refile at a later date.
Blue Destiny Records first sued Google for copyright infringment in December 2009 over links to copyrighted content hosted on Rapidshare. According to the new lawsuit (PDF) by Google, Blue Destiny Records intended to hold Google liable “for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity by using information location tools, including a directory, index, reference, pointer, or hypertext link”.
According to a Hollywood Reporter article by Eriq Gardner, that original suit cliamed that Rapidshare was running “‘a distribution center for unlawful copies of copyrighted works’ and that Google (and Microsoft’s Bing search engine) were helping to prop up the company.” Google states in this latest suit that it responded “expiditiously” to the record label’s Digital Millenium Copyright Act complaints “by removing, or disabling access to, links leading to webpages allegedly containing material infringing BDR’s copyrights” and that it should be protected by DMCA safe harbor.
According to Gardner, this move also favors Google by moving the lawsuit to the Ninth Circuit court, where Google found favor in “litigation with Perfect 10, an adult entertainment publisher who tried to punish search engines for indexing copyrighted photos.”
The question here is why did the record label decide to ask for a dismissal of its original claims only to wait for a later date to refile? According to Google’s lawsuit, the label told Google repeatedly that it intended on refiling in the future. If Google removed content identified in a DMCA take-down request, safe harbor should apply and the company should be protected. Was the label trying to put together a larger case? It seems that Google wants to preserve its way of doing business, wherein its search engine can index without regard for copyright and only needs to act when a DMCA take-down notice is issued. A decision holding Google responsible for copyrighted content, which it pulled down after the notice, would mean that the company would need to be much more discriminatory in its indexing of content.
The act of linking should not constitute a crime, especially when the company complies with DMCA take-down requests, and this appears to be the argument being offered by Google. A recent removal of a tweet by Twitter brought up similar questions. Should links be criminalized? Or should this sort of copyright infringement claim be reserved for actual hosting of content? And as we asked when we looked at the case of DMCA take-downs and Twitter, how many degrees of separation must there be before a link is no longer a criminal act? If we link to Google, which links to Rapidshare, which is hosting the content, should we also be held accountable for infringing copyright?
We should hope not.
