Is Google Instant Search liable for users’ copyright infringements?

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The fact

On April 2010 SNEP, the Syndicat National de L’édition Phonographique, brought in France a lawsuit against Google aimed at getting the words “Torrent”, “Rapidshare” and “Megaupload” filtered from the list of the Google Suggestion service.
SNEP is an organization committed to fostering the interests of the French recording industry also by collecting royalty payments for its members and promoting anti-piracy activities on their behalf.

SNEP alleged that the service at issue allows users to find and so download unlawfully music from illegal peer-to-peer websites due to the inclusion of words such as “Torrent”, “Megaupload” and “Rapidshare” among the suggested keywords.

In particular, Google Suggest is a service provided by Google since 2008 offering suggestions when the user types one or more letters in the search engine box. For instance, the service suggests the correct word once a misspelling is found.

The applicable law

The case did not involve the Internet Service Provider Liability regulated by Article 6 of the Law on Confidence in the Digital Economy which implemented the e-Commerce Directive 2000/31/EC; instead, it concerned Article L. 336-2 of the Code de la propriété intellectuelle (CPI), introduced by the HADOPI law.

Specifically, Article L. 336-2 provides that “In the presence of an infringement of copyright or related rights caused by the contents of a communication service to the public online, the high court, acting as appropriate in summary proceedings” is authorized to take “all appropriate measures to prevent or halt such infringement”.

In other words, upon request of the copyright owner, the First Instance Court can enforce any necessary and proportional measure aimed at stopping or preventing copyright infringements.

According to SNEP’s complaint, the censorship of the said three words would have been a proportional and effective measure. On September 2010, in a summary judgment, the Paris First Instance Court had dismissed the claim. In consequence of that, SNEP appealed the decision before the Court of Appeal of Paris.

The Court of Appeal said that, pursuant to Article 10 of the European Convention on Human Rights (ECHR), the exercise of the freedom of expression implies also duties and responsibilities, and this freedom may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [….] for the protection of the rights of others. Therefore, a restriction is enforceable to the extent a copyright infringement is caused by the content of a communication service to the public online.

However, Google Suggestion is an automatic service and the results are determined by an algorithm, so it predicts and displays search results depending on statistic data, i.e. other users’ search activities. In other words, all the predicted queries that are shown in the drop-down list have been typed previously by Google users. The suggestions rely on the researches made by others Google users who previously searched for the title, album or artist in connection with the challenged words.

The service at issue helps users during their researches by suggesting keywords in real time. Users begin typing a letter or number, and the search box displays suggested words. This helps users identify the needed search string quickly as well as eliminate any further typing on their part. Furthermore, it shows how many results there are for the displayed search strings.

The ruling

The Court argued that the display of the challenged words as the user types the name of a song depends on the previous queries made by other cybersurfers. In addition, it specified that Torrent, Rapidshare and Megaupload are not unlawful websites

More in detail, the Court held that suggesting the domains of these websites does not amount to a copyright infringement per se given that not all the files hosted by such networks infringe copyright and thus said websites themselves are not illegal (at all). From a technical standpoint, Torrent is a peer-to-peer file sharing protocol, while Megaupload allows user to upload files and Rapidshare is a file hosting service.

In addition the Court stressed that only the infringing activities carried out by users could be deemed illegal, while it could not the mere suggestion of the websites at issue.

In the light of that outlined above, the Court ruled that Google is not liable for its users’ activities.

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About Author

Anna is an intern in the IP/IT department of Gianni Origoni Grippo and Partners, Milan. In 2010 she got her degree in Law from Bocconi University of Milan. In 2009 she attended an IP intensive course at the London School of Economics (Summer School). She was also the editor-in-chief of the Bocconi School of Law Student-Edited Papers (2009-2010). Her main interests include Intellectual Property, Information Technologies, Telecommunications and Media, Advertising Law and Privacy.

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