[linux-elitists] Re: Google censorship of xenu.com domain [#201159]

Seth David Schoen schoen@loyalty.org
Tue Mar 26 12:07:18 PST 2002

Rick Moen writes:

> Quoting M. Drew Streib (dtype@dtype.org):
> > Fwiw, the law states that once one of these is received, the provider
> > must remove content at quickly as is reasonably possible, but must
> > then notify the content owner, which then may reply within 9 days(?)
> > with a counter-statement. If the content owner claims no copyright
> > violation, the provider may put the content back up and basically
> > leave the dispute to the content owner and claimed copyright victim.
> There's a mandatory, irreducible delay before putback may occur.  And
> it's obnoxiously long.
> > Of course, in this case, Google is the content owner as well, so they
> > may not choose to take this up with the CoS.
> Google wasn't really the _owner_ but did provide hosting in the form of
> cache data -- in in addition to its separate service of indexing.  I
> pointed out to the Google guy (last week) that his firm can, when
> necessary, meet any legally feasible[1] DMCA claim by removing the cache
> entry but _not_ the index one.  He countered by saying that mere
> indexing/linking could be culpable.  I replied by saying that this is
> only so according to the most extreme interpretation of DMCA to date,
> that of NYC's Judge Kaplan in the 2600 case.
> [1] IANAL.  TWNLA.

Recent discussion with lawyers around here on this point (based on
my understanding of what they had to say):

The DMCA 512 liability safe harbor includes protection from liability
for linking.  That is, you can be protected from liability for linking
to something which is an infringement of copyright if you are eligible
to use the 512 takedown procedures and you do (and certain other
conditions are met).

That doesn't mean that you _had_ liability for linking in the first
place.  The lawyer I most recently asked about this said that it was
unsettled whether a search engine bears liability for linking to
infringing material in the first place.  An ISP, search engine, etc.,
_could_ litigate this and argue that they aren't the copyright
infringer and have a first amendment right to report the location of
some document published by someone else.  There are lots of
discussions of what the result would be and of what the result should
be, but very few clear court decisions.

And then there's the Napster case, which is still in flux, and the
application of which to other kinds of services, networks, and search
engines is also being hotly debated.  (My recollection is that one of
the courts dealing with the Napster case refused to allow them to use
512 to protect themselves, but I don't know many details of the
history of that case.)

But the basic summary was that you might not have liability for
linking to copyright material in general.  _If you do_, 512 may
protect you, if you're eligible and you use it properly.  You could
also take the position (something Don and I alluded to in a
discussion) that you don't have responsibility, and choose not to act
on takedown notices at all.  (This is much more plausible for a search
engine than for a hosting provider, because the hosting provider's
argument against having liability when it continues to host content
it's been warned is infringing is much tougher.  In the Google case,
that probably does mean that serving cached copies of something
they've been advised is infringing is much riskier than providing
links to someone else's published version.)  Choosing not to take
advantage of the 512 safe harbor is potentially much more expensive
than the alternative of just pretending that you _are_ responsible in
this way.

I think EFF would support search engines which chose not to do the 512
thing.  But that doesn't mean that we'd necessarily represent them
in court.  And to get legal advice applicable to their particular
situations, they'd have to call us and discuss those situations.

Seth David Schoen <schoen@loyalty.org> | Reading is a right, not a feature!
     http://www.loyalty.org/~schoen/   |                 -- Kathryn Myronuk
     http://vitanuova.loyalty.org/     |

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