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Google is getting pretty aggressive in sticking its head in the entertainment industry’s court battles on the copyright front.
Last week, the search giant filed an amicus brief in the MPAA’s lawsuit against Hotfile, a cyberlocker that the studios recently labeled “more egregious” than Napster and “indistinguishable” from Megaupload.
A judge will soon decide whether Hotfile is liable for inducing its users to infringe billions of copyrighted works, and in anticipation of that ruling, Google wants the judge to be careful about accepting Hollywood’s interpretation of the Digital Millennium Copyright Act, specifically the provisions relating to when ISPs enjoy safe harbor from liability.
In the amicus brief, first posted by TorrentFreak, Google maintains that the DMCA puts responsibility for policing copyright infringement online primarily on copyright owners and that only upon gaining knowledge of specific infringing material — and failing to respond expeditiously — do ISPs like Hotfile lose safe harbor from copyright claims.
If the argument sounds familiar, it’s the one successfully deployed by Google subsidiary YouTube in defending a billion-dollar lawsuit by Viacom. That case is currently on appeal.
Google points to the Viacom v. YouTube summary judgment decision, as well as other decisions like UMG v. Veoh, which have gone in favor of online distributors of copyrighted content, on the issue of what “actual knowledge” of infringements is needed to compel ISPs to take material offline.
Many copyright holders, including the studios, believe that the YouTube case was decided wrongfully at the summary judgment phase, that ISPs become liable when they see “red flags,” otherwise known as awareness of “facts or circumstances from which infringing activity is apparent.”
In the past, copyright holders also have pointed to other cases (such as Columbia v. Fung or Arista v. Usenet) suggesting that websites inducing copyright infringement aren’t eligible for safe harbors.
Whatever ground Google picked up in its summary judgment victory against Viacom, the company wants to make sure there’s no back-door intrusion in the Hotfile case. So it has filed its amicus brief, rehashing its interpretation of the DMCA.
Not surprisingly, the MPAA is objecting. The industry trade group says Google is acting as a “partisan advocate” for Hotfile, attempting to influence the law in its own favor, and points out that the two companies share the same attorney. The MPAA wants the judge to deny Google’s request to submit an amicus brief.
It should also be noted that early on in this case, Hotfile made the argument that it couldn’t be held liable for inducing users to commit copyright infringement because it didn’t allow users to search for copyrighted works on its network.
“This absence of a search box obviously means that users cannot — in contrast to sites such as Grokster and Napster — find and download whatever content they want, including alleged infringing content, by simply visiting the Hotfile website and searching for it,” wrote Hotfile in a brief last year responding to the MPAA’s claims.
Of course, many users find copyrighted works on cyberlockers like Hotfile by searching Google. This issue was briefly discussed in an aborted lawsuit by a small record label against Google for facilitating copyright infringement by linking to copyrighted work on Rapidshare, a Hotfile competitor. Google went on the offensive in that case, causing the small company, Blue Destiny Records, to back off. Mostly, up until very recently, Google has been fairly quiet on copyright issues that didn’t directly pertain to its own business, perhaps in the interest of not sparking challenges from copyright owners like the claims made by Blue Destiny.
But in the last few months, at least since the SOPA debate heated up, Google has been much more assertive on the legal front. Last month, before butting into the MPAA’s case against Hotfile, Google attempted unsuccessfully to submit an amicus brief at an early stage in the recording industry’s legal war against secondhand digital music seller ReDigi.
The industry and Google have become more hostile toward each other in rhetoric over the past year; it remains to be seen whether this will spill over into direct legal action.
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