Category Archives: Legal Issues

Google Wins Anti-Piracy Filtering Lawsuit, Filters Anyway

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Since April 2010, French music rights and anti-piracy group SNEP has been engaged in legal action against Google. SNEP felt that Google should censor search terms such as torrent, RapidShare and MegaUpload. Having been decided once already in Google’s favor the case went to an appeal. This week the Court of Appeal decided that Google can’t be forced to filter.

Image is Loading....The Syndicat National de L’édition Phonographique (SNEP) is an organization set up to protect the rights of the French recording industry. SNEP collects royalties for its member labels and also carries out anti-piracy activities on their behalf.

As part of their anti-filesharing actions, in April 2010 SNEP initiated legal action against Google in an attempt to force the search giant to filter certain terms from their auto-suggest feature. It will come as little surprise that the words targeted were ‘torrent’, ‘RapidShare’ and ‘MegaUpload’.

SNEP’s case relied on Article L336-2 of France’s intellectual property code. The article states:

“In the presence of an infringement of copyright or related right 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…”

As noted by news outlet Numerama, this provision was introduced into law in anticipation that some day ISPs would be asked to block access to file-sharing sites. SNEP clearly thought they could extend the target of the legislation in their favor.

In September 2010, the Tribunal de Grande Instance de Paris rejected the complaint and ordered SNEP to pay Google 5,000 euros in costs. Dissatisfied with the court’s decision, SNEP took the case to appeal, asking for damages of 1,000 euros for every day the results appeared in Google’s listings. Furthermore, they added a list of artists, albums and songs to be filtered in connection with the above terms.

This week the Court of Appeal in Paris handed down its ruling. In common with the earlier decision, the Court found that the mere presentation of terms in a set of search results did not necessarily mean that an infringement of copyright would follow.

Furthermore, in an apparent reference to RapidShare and MegaUpload, the Court noted that just because users of these sites can use them to transfer unauthorized copies of music, it does not automatically follow that the sites are rendered illegal as a result. The Court also made clear that SNEP could not hold Google responsible for the subsequent activities of Internet users who use their search engine.

However, as first reported by us earlier this year, Google already took the decision to filter its auto-suggest feature, a move duly noted by the Court of Appeal. But does it then follow that this act of self-censorship must be an admission of guilt?

“The fact that Google has filtered its results does not mean that they have complied with [SNEP's] request and admitted responsibility,” said the Judge, adding that despite Google’s actions, any infringing content still remains on the web.

Once again the case was decided in Google’s favor and SNEP was ordered to pay 5,000 euros costs.

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Leader of Music Piracy Group Faces 5 Year Jail Sentence

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A 29-year-old man from California has pleaded guilty to his role in a long-running warez-scene release group and now faces up to 5 years in jail. The group, called OSC, ran from 2002 until 2007 and was responsible for the pre-release of the Kanye West album Graduation. It’s connections to ex-members of the previously busted group, Rabid Neurosis, appeared to prove fatal.

According to a release by the Department of Justice, yesterday Richard Franco Montejano of Harbor City, California, pleaded guilty before U.S. District Judge George H. King to one count of conspiracy to commit willful copyright infringement.

The single charge relates to the pre-release of the Kanye West album, ‘Graduation’, which which according to the DoJ was uploaded to a private server in August 2007, one week before its official release. According to Scene records, it was in fact uploaded 11 days before.

Montejano had previously admitted that from 2002 to 2007 he was the leader of the warez release group OSC (oL-sKOOL-cLASSiCS), a group dedicated obtaining music and making it available to the Scene in advance of its commercial release.

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According to court documents, Montejano maintained OSC’s server and also admitted to uploading music to servers operated by other warez groups.

Following the January 2007 break up of another famous release group known as RNS (Rabid Neurosis), Montejano is said to have utilized the group’s two former suppliers known as ‘adeg’ (Bennie Glover) and ‘StJames’ (James Anthony Dockery). Both were employed at a CD pressing plant that manufactured for Universal Music.

Rabid Neurosis had operated over a longer period – between 1999 and 2007 – and were responsible for dozens of major releases including Eminem’s ‘Encore’ and ‘How to Dismantle an Atomic Bomb’ by U2.

Following their arrests, Glover and Dockery pleaded guilty to conspiracy to commit willful copyright infringement. Both were sentenced on January 15th 2010 to three months in prison and two years of supervised release.

However, in March 2010 two other RNS members, Matthew Chow and alleged group leader Adil Cassim, were found not guilty on charges of conspiracy to commit copyright infringement.

Montejano’s sentencing is scheduled for July 25th where, like those before him in both groups, he faces a maximum penalty of five years in prison and a $250,000 fine.

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Google, MPAA and isoHunt Clash in Court

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Last year the BitTorrent search engine isoHunt filed an appeal in their case with the MPAA. With the appeal isoHunt hopes to overturn a District Court ruling that obligates the site to operate an MPAA-approved censorship filter. The case is still ongoing and the Appeal Court has now granted Google the opportunity to chime in as well, leading to critical comments from both the MPAA and isoHunt.

Two months ago Google got involved in a BitTorrent case for the first time in its history. The company took an interest in the ongoing legal action between isoHunt and the MPAA, fearing that the standing injunction has the potential to damage Google and other web services.

In February Google filed an amicus brief (third party testimony) at the Appeal Court, in the hope that the court would consider Google’s opinion on the case. The MPAA was against a Google contribution, but despite these concerns the Appeal Court has now allowed the search engine’s testimony to be added to the case.

Although Google did not dispute isoHunt’s liability in their testimony, the company stated that some of the reasoning in the District Court verdict went too far, and Google wants to see it scrapped in the appeal.

“While in agreement with the result reached in this case, Google is concerned that some of the reasoning offered by the district court goes too far and would upset the careful balance between copyright protection and technological innovation struck by the Supreme Court and Congress. Particularly because this case is not a hard one, it should be decided narrowly,” Google wrote.

The search giant addresses various issues they feel are not needed to arrive at the verdict, but can negatively impact other services on the Internet. Several of these conclusions are the result of suggestions made by the movie studios, which Google claims are misplaced and incorrect.

Google wants to address these issues because they fear it may otherwise lead to a negative outcome for themselves.

The Appeal Court agreed to accept and consider the amicus brief last month. This is the first time that Google have got involved in a BitTorrent case which is significant itself, but interestingly enough neither the MPAA nor isoHunt are happy with Google’s submission.

In a response to Google’s brief, isoHunt says it agrees with Google’s arguments that the District Court verdict is full of “fatal errors” and “omissions”. However, it doesn’t agree with Google’s conclusion that isoHunt is liable for copyright infringements by some of their users. isoHunt’s lawyer therefore asks the court to reject the latter arguments.

“Defendants submit that Google’s confusing arguments and fallacious reasoning should not obscure the importance of issues presented by this case. Defendants have proposed a practical way to deal with such issues; but Google, like plaintiffs, propose nothing other than affirmance of a factually flawed and legally ill-founded District Court Decision.”

The MPAA also responded to Google’s testimony, and was even less pleased to see the company chime in.

“Google is not a disinterested amicus. Google itself is a defendant in suits charging certain of its business units which intentionally promote infringement. Google’s arguments as amicus reflect its litigation interests in obtaining a legal ruling that facilitation of infringement, even if shown to be intentional, may still be immune from copyright liability.”

The MPAA’s legal team then goes on to refute nearly all arguments made by Google. The search engine wants to scrap all of the District Court’s conclusions regarding liability that could eventually be used against Google, but the movie companies clearly disagree.

“The Court should reject Google’s pleas for immunities for businesses that intentionally facilitate copyright infringement,” MPAA’s lawyers conclude.

Although Google weighed in on the isoHunt vs. MPAA case in self-interest, the mere fact that they got involved signifies the importance of the case. To some it may ‘just’ be a dispute between a BitTorrent site and the MPAA but if affirmed the District Court ruling may have far-reaching consequences for hundreds of other web-services.

After filing the amicus brief Google’s role in the case has likely ended, but isoHunt and the MPAA will continue their battle in court.

There’s a hearing planned in early May where we will find out more about where the case is heading. Interestingly, this hearing is scheduled on the same day and in the same court as Veoh’s appeal hearing. Another DMCA case, but one where the service provider was not held liable.

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