Monday, March 14, 2011


World Wide Web brought along with it access to hyper linked documents on the Internet. Information over the Internet now was just a click away. Websites over the Internet are ready to provide all sorts of information to the web users. There has been a tremendous rise I traffic over the Internet and it is the search engines which have ensured the free flow of internet. These search engines provide information to the web user by the use of urbane technologies. And the use of these technologies has raised many issues surrounding copyright laws. Amidst these issues, the most intriguing issue these days is holding a search engine liable for copyright infringement. Over the past many years there had been several suits filed over various courts of law worldwide with regard to the same. In Gordon Roy Parker V. Google inc[1]court held that the defendant must show that the defendant in committing infringing acts engaged in ‘Volitional Conduct’. Google Search Engine in Blake A. Field V. Google Inc[2] escaped from similar charges through the argument that it was the user who created copies of the copyrighted work and not Google, the cache shown by them was an automated process.

But the US district court in Perfect 10 V. Google Inc.[3] held Google liable for direct copyright infringement through thumbnail display. But the decision was reversed by the Ninth Circuit in Perfect 10 V.[4].The decision discarded direct copyright infringement by the search engine it remanded the case for deciding the contributory or secondary copyright infringement. The Beijing High Court adjudicating the Yahoo! China Case[5] upheld that the Search Engine was liable for joint copyright infringement.
Copyright Infringement
Copyright is an exclusive statutory right of literary (authors, playwrights, poets), musical (composers, musicians), visual (painters, photographers, sculptors), and other artists to control the reproduction, use, and disposition of their work[6].Article 27 paragraph 2 of the Universal Declaration of Human Rights (UDHR)[7] provides as a basic right that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ It guarantees protection against copyright infringement. Liabilities in copyright infringement:
Direct Liability - To succeed on a claim for direct copyright infringement, a plaintiff must prove two elements:
1.      Ownership of the copyrighted material, and
2.      Violation of one of the exclusive rights of the copyright owner by the defendant.
Vicarious Liability- Courts have imposed vicarious liability where parties
1.      receive a direct financial benefit from the infringement; and
2.      they have the right and ability to supervise or control the infringement.
In Playboy Enterprises, Inc. v. Frena[8] the court found a Bulletin Board Service (BBS) operator vicariously liable for permitting the unauthorized uploading of images from the plaintiff’s magazine to the Internet for commercial gain.

Search Engines and Infringement
Search engines allow millions of users to locate content over the internet. Search engines operate algorithmically or are a mixture of algorithmic and human input. The operation of a search engine is based upon Web Crawling, Indexing & Searching. Generally a typical web search engine stores information about the web pages over the WWW. The pages are retrieved by an automated Web browser called Web Crawler or Spider. The content of pages so 'Crawled' are then analyzed and 'Indexed'. A database called ‘index database’ is maintained having information about it, also ‘cache technique’ is used to store words of every web page. When a user enters a 'Search text' the search engine matches its cache or database and provides the best matching web pages with a short summary about the web page[9].
(i) Related Cases - Cases mentioned out here are those cases which act as precedents in cases of liability of search engines for copyright infringement.
·         Le Hotels Méridien v. Google France[10] - Decided in the year 2004 by French Court, the case alleged the search engine for Trade mark infringement. In this case Google was held to be an infringer and court held that Google played an active role in encouraging advertisers to infringe registered trademarks. Defense of disclaimer by Google was discarded[11].
·         A & M Records Inc V Napster Inc[12] - Napster a P2P Network company was held liable for the contributory infringement by the Ninth Circuit Court of USA. It was alleged that Napster provided the users with the Music Share Software for uploading and downloading songs from the P2P network. Napster contended that the Sony doctrine[13] shielded it from secondary liability because its software and network were capable of substantial non-infringing uses. The Ninth Circuit court rejected such defense and held that Napster had constructive knowledge of infringement and facilitated and helped users by maintaining indexing central servers and providing technical support to its users.
·         MGM Studios Inc V. Grokster Ltd.[14]- Grokster and Streamcast were companies that distributed free software that allowed computer users to share electronic files through P2P network. The users were involved in downloading copyrighted materials through the network. The petitioner claimed that the defendant provided for the software through which several files were transferred of which they had copyright. The Ninth Circuit didn’t held Grokster for any such infringement but on appeal to Supreme Court it was held liable for contributory infringement.
·         Universal Music Australia Pvt. Limited V. Sharman License Holdings Limited[15]-
In September 2005, the Federal Court of Australia found KazaA liable for authorizing copyright infringement. Despite the fact that the KaZaA website contains warnings against the sharing of copyright files, and end user license agreement under which users are made to agree not to infringe copyright, it has long been obvious that those measures are ineffective to prevent, or even substantially to curtail, copyright infringements by users. The defendants had long known that the KaZaA system is widely used for the sharing of copyright files and such authorization was held to be infringement of copyright.

(ii) Direct Cases -The above discussed cases gave copyright owners the right to target companies rather than prosecuting individuals. As an outcome of such right several litigations came up in front of the court where online service provider was sued for online copyright infringement. Since the Search Engines were the key players in online sale and revenue generation they were targeted the most.
·         Blake A. Field v. Google, Inc.[16]- In this case plaintiff Blake Field brought a suit against Google contending that by allowing Internet users to access copies of 51 of his copyrighted works stored by Google in an online repository, Google violated his exclusive rights to reproduce copies and distribute copies of those works. The Court held that

(a) Google did not commit direct copyright infringement because the process by which Google displayed the cache was an automated and non-volitional act in response to the user’s request. The court stated that Google was not creating copies of Field’s work; it was the user that was creating the copies.

(b) Google had an implied license to display Field’s works through its cached link. Field’s conduct reasonably could be interpreted as granting an implied license to Google to display the content of Field’s web site via the cached link.

(c) Google’s use of cached links constituted fair use. Google’s use of Field’s work was trans formative, which weighed heavily in favor of a finding of fair use. Google not only uses industry standard procedures to ensure that it does not display cached links if the owner of the page does not want them to appear, but it also provides an explanation on its web site regarding how a web page owner can request that it not display cached links. Google takes steps to ensure that users seeking an original web page through its search engine can easily access that page, and that viewers of the cached page know that the cached page is not the original page. Additionally, with respect to Field specifically, Google removed the cached links to Field’s works once it learned that Field had filed suit (and before Google had been served in the case).
(d) The court also found that Google was entitled to the protection of the safe harbor provided by Sections 512(b) of the DMCA[17]. That section states that a service provider will not be liable for copyright infringement by reason of “intermediate and temporary” storage of material on a system operated or controlled by the service provider if certain requirements are met. The court found that Google’s 14-20 day storage was “temporary and intermediate” within the meaning of the DMCA.
·         Gordon Roy Parker v. Google, Inc.[18] - Parker posted writings on his own web site and on the Usenet, a community of electronic bulletin boards maintained by Google. Representing himself, Parker filed a seventy-two page complaint, with 129 paragraphs of factual and legal allegations, against Google and “50,000 John Does”, asserting direct and secondary copyright infringement on the basis of Google's automatic archiving of Usenet postings, creation of hyperlinks responding to inquiries, and excerpting of his web site. District Court of US dismissed claims charging Google with direct copyright infringement. The District Court held that Google has not engaged in the requisite volitional conduct necessary to be held guilty of direct copyright infringement because such copying is a by-product of the automated operation of Google’s search engine and related technologies. As such, Google’s acts are akin to a user’s use of its ISP to transmit infringing material to a third party, which do not give rise to direct infringement claims against the ISP.
·         Perfect 10 V Google[19]- In this case California federal court granted a plaintiff’s motion for a preliminary injunction against the Internet search giant from creating and displaying thumbnail versions of the plaintiff’s copyrighted photos in Google’s image search results. Perfect 10 filed suit against Google and Amazon, alleging direct copyright infringement for Google’s “display” of full images through the frames, direct copyright infringement for the use of the thumbnails, and vicarious and contributory copyright infringement. Perfect 10 moved for a preliminary injunction.

(a) Perfect 10’claimed for direct copyright infringement of its exclusive right to ‘display publicly’ ‘distribute’ its copyrighted image. The court applied “Server test” The server test defines “display” as the act of serving content over the web. Because the full-size image appears on Google’s site only by way of in-line linking, and Google had not stored or served the full-size images, the court found that Google had not displayed the images for copyright purposes. But the court found that the use of ‘thumbnail’ images by Google was not likely ‘fair’ and amounted to infringing act.

(b) In-line linking is not copyright infringement because the images are stored and displayed on their original sites and not on the Google site. Thus, Google did not copy, display or distribute these images, as necessary to violate copyright law.

(c) Providing an "audience" for infringing websites and advertising those sites is not active encouragement to the public to visit those sites. Therefore search engines cannot be held liable for secondary or contributory infringement.

(d) Local storage is an automatic process that is typically non-commercial, and is likely fair use.
·         Perfect 10 Inc. V Amazon .com[20] - In this the  court held that although Google may facilitate a user's access and may be open to contributory liability, the assistance it provides does not constitute direct infringement of Perfect 10's display rights.
·         Universal International Music B.V. EMI (Taiwan) Ltd v. Beijing Alibaba Information Technology Co. Ltd[21]-.In January, 2007, Universal Music Group, Warner Music Group, EMI Music Group and Sony BMG Music Entertainment Inc and others jointly sued Beijing Alibaba Information Technology Co. Ltd., the owner of ‘Yahoo! China’, for infringement of copyright in two hundred and twenty nine audiovisual works. On April 24, 2007, the Beijing Second Intermediate People's Court held that
(a) The plaintiff’s claim that ‘Yahoo! China’s’ conduct amounted to direct dissemination of the infringing music is rejected. Court said that the defendant's act, merely providing links without music content, should not be taken as directly disseminating the infringing songs through network.
(b) After receiving the Take-down notices, the defendant was put on notice that the plaintiff’s owned the copyright in the sound and video recordings and should have known that links were provided by its search engine to third party infringing websites even though they were not included in the sample URLs provided by the plaintiffs. The defendant thus failed to fulfill its obligation of removing all links to unauthorized music by only removing the links in the Plaintiff’s samples.
The court referred to Article 23 of ‘Regulation on the Protection of the Right to Network Dissemination of Information’ which provides:
“Where a network service provider provides any searching or linking service cuts off the link to any infringing work, performance, or audio-visual product after receiving a notice from the right owner according to the provisions of the present Regulation, it is not required to assume the liability to make compensation. However, when anyone is fully aware or should have known that any of the works, performance or audio-visual products it has linked to constitutes an infringement, it shall be subject to the liability of joint infringement.”Yahoo! China appealed to the Beijing High People's Court. And in December, 2007, the High Court rejected the appeal and upheld the decision made by the lower court.
·         Viacom International Inc. V. Youtube Inc & Google[22]- Viacom filed a suit against Google, over copyright infringement. In the lawsuit that was filed against YouTube and its parent company, Google, Viacom had claimed that more than 150,000 unauthorized clips have been viewed for an astonishing 1.5 billion times.The US court dismissed the injunction suit and held that the action of the defendant neither make them liable for direct infringement nor for contributory infringement under DMCA. The cross-motion for a protective order barring disclosure of the source code for the search function was granted, and the motion to compel production of that search code was denied.
Internet changed the way by which the information was disseminated. In recent years there had been cases in which the Search Engines were held to be liable for copyright infringement yet it is one of the toughest job to survive one’s own suit against the defenses available to them. Defenses like “Fair Use”[23], “Implied License”[24] “Estoppel”[25], and many more defenses are still an open challenge for copyright owners to overpower.
As observed by Ninth Circuit in Perfect10 V. “….search engines have similarly massive repositories of information. The cost of filtering search results to eliminate copyrighted material, while low in individual instance, could have the net effect of compromising the integrity of the search engine itself ……….”.[26]If a copyright owner proves that the Search Engines specifically targeted them or induced infringement and generated profit from it the court will definitely come with decisions similar to Yahoo! China.

[1]                                                                                                                                       422 F. Supp. 2d 492
[2]                                                                                                                                       412 F.Supp.2d 1106
[3]                                                                                                                                       416 F. Supp. 2d 828
[4]                                                                                                                                       487 F. 3d 701 (9th Cir, 2007)
[5]               Universal International Music B.V. EMITaiwanLtd v . Beijing Alibaba Information Technology Co. Ltd
[6]               Webster’s New World Law Dictionary, 2006 Ed.
[8]               839 F. Supp. 1552 (M.D. Fla. 1993).
[11]             Ibid
[12]             239 F.3d 1004 (Ninth Circuit, 2001)
[13]             Doctrine laid down in the case Sony Corporation of America V. Universal City Studios Inc , 464 US (1984) 417 The US Supreme Court held that “ if a product is capable of other non-infringing and ‘substantially lawful’ uses, the producer could not be held liable.”
[14]             125 S Ct 2764(2005)
[15]             [2005] FCA 1242
[16]             412 F.Supp.2d 1106 (D. Nev. 2006)
[17]             Digital Millennium Copyright Act ,
[18]             422 F. Supp. 2d 492
[19]             416 F. Supp. 2d 828 (C.D. Cal. 2006)
[20]             508 F.3d 1146 (9th Cir. 2007)
[22]             No. 07 Civ. 2103, No. 07 Civ. 3582 (S.D.N.Y. June 23, 2010)
[23]             Accepted in Perfect10 V Amazon.Com (supra 25)and played a vital role in reversing judgment of Perfect10 v. Google (supra 25)
[24]             Accepted in Field V. Google (supra 21)
[25]             Ibid
[26]             Supra Note 22

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