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Another Question Of Search Engine Legality and Infringement 95

Posted by ScuttleMonkey from the what-if-the-judge-is-a-tech-moron dept.
Another question of search engine "legality" is being addressed with a recent court case in the UK over a video search engine. Techdirt's coverage questions the long-standing tradition of how to evaluate contributory infringement claims for sites like search engines based on the highly subjective "I know it when I see it" test. "Take for example, the situation going on in the UK, where Anton Benjamin Vickerman and his wife Kelly-Anne Vickerman decided to do something that makes a lot of sense: create a search engine for videos online, indexing a variety of different sites. This was as a part of their company Scopelight, and the search engine itself was called Surfthechannel. This is certainly a useful product. But, of course, the search engine's algorithm has no way of knowing if that video has been put up by the copyright holder on purpose or if it's unauthorized. Even more tricky, how does it determine fair use? So, it did the reasonable thing: it includes everything. Lots of the videos are legal. Plenty are potentially unauthorized. Apparently that wasn't good enough for a UK-based anti-piracy group UK-FACT, who had Scopelight's premises raided, claiming the site is illegal, since people can find unauthorized content via it. Of course, you can find unauthorized content on Google as well. But you know who's liable for that? Whoever actually put it online. Not the search engine that pointed you to it."
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Another Question Of Search Engine Legality and Infringement More

Another Question Of Search Engine Legality and Infringement

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  • At least for America, this blogger simply holds a different viewpoint of how things should be from the content lawyer lobbyists and the court system they control.

    But you know who's liable for that? Whoever actually put it online. Not the search engine that pointed you to it.

    That's really funny you should say that because recently precedent was set at $80,000 per song [slashdot.org] for uploading and distributing it. Was the defendant the original uploader? Not even close.

    And you know what? Through both those trials, I am unaware of any action taken to track down the initial uploader of those files. Maybe because doing so is futile. But it might also be that the legal system here (and also in Sweden apparently) views association of diseminating information about pirating as a more problematic and evil crime than the actual act of you pirating it for yourself!

    This is a complex process of getting copyrighted material to you. Someone has to buy it, encode it, upload it, it gets seeded or whatever, you search for it, you download it, you execute it, you re-upload it, ad nauseum. And at any point in that chain, these people are not afraid to prosecute you. And, like some sort of pyramid scheme, you collect all the sins of those in the chain before you. And you pay, oh yes, my brethren, you pay dearly.

    • Re:Simply an Opposite Veiwpoint (Score:5, Informative)

      by Freetardo Jones ( 1574733 ) on Friday June 26, 2009 @01:22PM (#28486107)

      That's really funny you should say that because recently precedent was set at $80,000 per song for uploading and distributing it. Was the defendant the original uploader? Not even close.

      Actually Jammie Thomas was the original uploader. She ripped her CDs and then made them available on P2P. Secondly, that wasn't the creation of any precedent, that was just the jury applying current statues when it comes to copyright infringement (and it's not even the statutory maximum). Thirdly, Jammie Thomas is nothing but a guilty liar and her and anyone who supports her are just making it harder for those of us who try to make a legitimate case against the DMCA and current copyright laws. Finally, exactly what does a US trial and US statutes have to do with the UK?

      • Re:Simply an Opposite Veiwpoint (Score:5, Insightful)

        by !coward ( 168942 ) on Friday June 26, 2009 @02:07PM (#28486645)

        I couldn't agree more, and many have said as much before, that Jammie is the worst kind of poster-face for the fight against the RIAA, the DMCA, current copyright laws and the insanity of the business practices of an industry who constantly shows no respect whatsoever to the artists they're supposed to foster and protect and the consumers who still make it possible for them to be a multi-billion dollar player.

        But the fact is, however guilty Jammie may be, that judgement was nothing short of a legal railroading of her financial future (even if she eventually files for bankrupcy, it's not a pretty sight), and a completely disproportionate response/penalty to the offenses commited. I mean, I can certainly see the case for high damages when we're talking about people who not only wilfully infringe (the only way for her to get slapped with more than $30k per song), but more importantly profit from it. When profit is the motivation, then heck, by all means, go for the throat.

        But a civil suit for copyright infringement that stems from a simple "I'm not paying for this", with no other financial motivations behind it, should never be able to reach such high figures. I always hate it whenever a judicial system takes someone and tries to "make an example" out of them, to discourage others from following. It's just too arbitrary, has led to many unsavoury situations in the past and is the opposite of how any judicial system should work -- all equal before the law.

        • Oh I totally agree that the statutory limits are excessive, and have said so in a previous post in the linked thread from the GGP, but supporting someone as ridiculous as Jammie Thomas is going to make people completely shut out anyone attempting to make a legitimate point. Her case is doing nothing but feeding directly into the hands of the RIAA/MPAA and they are probably more then grateful that they got not just one judgment against her but two.

          • Re: (Score:2)

            by !coward ( 168942 )

            I hear ya, and, again, I agree.

            I don't see the EFF or other like organizations falling over themselves to come to her aid, do you? ;) I think pretty much everyone realized early on that this one was a losing battle. That she should probably have settled, shouldn't have lied/contradicted herself or otherwise engage in very suspicious behavior (the missing/swapped hard drive comes to mind). Even NYCL's coverage of the thing seemed far more distant than his take on other cases.

            But everyone is entitled to put u

            • No, not the EFF but there are still slashdotters who even in the linked thread are still parroting her idiotic defenses and acting as if she is innocent. It's people like that who continue to hurt any legitimate causes.

        • When profit is the motivation, then heck, by all means, go for the throat.

          That isn't how the system works.

          Civil law isn't about motive. It is about responsibility.

          The recovery of damages for your wrongful or negligent actions.

          When the damages total up to to $65,000, the jury awards $65,000. The jury never sees your bank account. Your credit rating. Evidence of hardship is simply not admissible. It is not a defense. The jury cannot provide equitable relief. Collection is not their responsibility either.

          But

      • Odd. You make the point that copyright law is fubar'd. You quite reasonably point out that Jammie Thomas is probably guilty of something. We can agree that much. But, you seem to see little problem with Jammie, and people like her, being prosecuted under law that is fucked up beyond all recognition. Odd.

        My attitude is, if the law is wrong, then no one can be guilty of violating that law.

        If I may draw a parallel between the legal system, and the military?

        A leader never issues an order that he knows will

        • My attitude is, if the law is wrong, then no one can be guilty of violating that law.

          My attitude is similar, however, we do not have the luxury to apply our attitudes. At least not without risking serious repercussions. Jail, fines, etc. So you want to make sure you pick your battles well.

          The way our country is set up, we don't have a heck of a lot of say, as individuals, of what should be the law, and what should not be the law.

          We, as citizens, are allowed to make suggestions (by lobbying, writing letters, protesting, etc.), but, really that is it. Just suggestions.

          We have to depend on our

    • Re: (Score:2)

      by geekoid ( 135745 )

      The defendant was uploading. You don't have to be the original uploader(distributor) just a distributor. And if you aren't leeching your torrent, then you are distributing content.

      • Re: (Score:3, Interesting)

        by Penguinoflight ( 517245 )

        The problem with that argument is two-fold. First, once the media has already been made publicly available the status of legal protection for said media could be considered inactive. Copyrighted materials that are not actively protected are not subject to litigation. On the other hand, the original infringer may have removed any copyright notice or distribution limitations that would have flagged the work.

        It is the responsibility of the copyright holding company to inform viewers of the limitations.
        Argui

    • Re: (Score:2)

      by jonfr ( 888673 )

      The cops need to raid UK-FACT offices. I am sure that they have some shady stuff. Groups like UK-FACT always do.

      • Groups like UK-FACT are fucking bullies, they deliberately pick on the little fish in the hope they can set some kind of precedent they can use as a weapon against bigger fish.
    • The way I see it, ignoring the DMCA, only someone downloading should be held responsible. The uploader has no idea if you own a legal copy of something. That should be the downloader's responsibility. If you upload, you are helping others make legitimate backups. If someone abuses that and doesn't own a legitimate copy, they are the only one's that should be prosecuted. On the same line of reasoning, even if you are guilty as a downloader, you don't know if anyone you are uploading to owns a license and sho

    • Re: (Score:2)

      by serutan ( 259622 )

      In my opinion the whole association between search engines and "contributory infringement" is smoke and mirrors. If the yellow pages gives the address of a pawn shop, do they share the guilt if the shop sells stolen property? No. If Flickr shows a photo of a fruit stand with racks of fruit out in front of the store, do they share the guilt when somebody runs by and snatches fruit off the rack? No. Does Google Maps share the guilt if they show a Ferrari parked out on the street and somebody steals the Ferrar

    • But you know who's liable for that? Whoever actually put it online. Not the search engine that pointed you to it.

      That's really funny you should say that because recently precedent was set at $80,000 per song [slashdot.org] for uploading and distributing it. Was the defendant the original uploader? Not even close.

      That's really funny you should say that, because your example has nothing to do with TFS.

      The point is that in the case you cited, the defendant actually was (allegedly) an uploader. Whether the original or not doesn't matter, she was making those files available for download, and they were being downloaded from her computer. And she could just as well have been sharing/uploading her own CDs, so whether she was the original uploader or not doesn't matter.

      My understanding of this situation is that the v

    • Re: (Score:2)

      by selven ( 1556643 )
      There is no single "first uploader". There are probably around 1000 people who pirated it straight from legitimate media sources and put it up. Then, the stuff spread all over the pirate networks and a few people were still uploading it from wherever they bought it.
  • If I show the cops were the bank robbers are stashing the money, I'm guilty of robbing the bank?

    • Since this is a false analogy, no.

    • Re:So, to draw a parallel (Score:5, Informative)

      by EkriirkE ( 1075937 ) on Friday June 26, 2009 @01:32PM (#28486233) Homepage
      Yes.
      In HS I showed out net admin that I could access anyone's private doc folder - across multiple campuses. I wasn't caught, I explicitly showed it to the proper authorities. I got suspended and my computer privileges revoked.

      Apparently you are better off doing wrong than good.

      • Re:So, to draw a parallel (Score:4, Insightful)

        by Anonymusing ( 1450747 ) on Friday June 26, 2009 @01:41PM (#28486327)
        The proper phrase is, "No good deed goes unpunished."

      • Wow. Way to teach kids how to be honest.

        I wonder what the heck their reasoning was? I suspect they were just personally pissed at you for pointing out their mistake and decided to exact revenge rather than accept that a teenager might be better than them at this.

      • In HS I showed out net admin that I could access anyone's private doc folder - across multiple campuses. I wasn't caught, I explicitly showed it to the proper authorities. I got suspended and my computer privileges revoked.

        Did you "show" it by doing it, or "show" it by laying out how a hypothetical someone might do it, strictly in theory mind you, if they chose to do so.

        If it was against your school's policy to access another users folder and you did so, then you deserved to be punished. It doesn't matter what your intentions were or who you demonstrated the infraction for. Rules are rules and breaking them to prove how easily they can be broken is still breaking them.

        There is a big difference between telling someone that t

        • Just listing the contents of a folder (without opening the files themselves) is hardly comparable to stealing stuff, and being suspended for that is moronic.

      • Re: (Score:2)

        by don.g ( 6394 )

        Good old high schools. I showed the teacher who set up our intranet how the password-protection (done via client side JavaScript) could be bypassed. I didn't get in trouble, and they didn't bother improving it; I think the claim was that those pages weren't especially secret and that students who could "break in" were somewhat rare.

      • Re: (Score:1, Troll)

        by Hurricane78 ( 562437 )

        You should have done the following:
        Install a trojan backdoor on as much systems as possible. Then frag the admins's systems trough some of those backdoors (which should be encrypted), and at least twice trough an external anonymizing proxy.

        But frag them slowly, taking all the backups with you.
        That will teach 'em to learn their security, for sure. ^^

        Then wait for the new security update to be announced. ^^

    • If they aren't reporting all the illegal filesharing going on on their site (Such as in your analogy of reporting where the money is), then they are aiding them. You aren't allowed to aid bank robbers in their acts.

      • Re: (Score:2)

        by RingDev ( 879105 )

        So if I put up a web site that allows all of the local barterers and pawn brokers to add themselves to the site (or for others to add them), and some of those pawn brokers perform illegal trades with out my knowledge, should I be held accountable for disseminating the information as to their location?

        -Rick

  • this is a fundamental flaw in some current law (Score:5, Interesting)

    by jacquesm ( 154384 ) <j&ww,com> on Friday June 26, 2009 @01:14PM (#28485983) Homepage

    In many countries it is now illegal to link to infringing content, it will take the likes of google to be sued before we'll get a real precedent because only they have enough money to take it all the way to the highest courts.

    Linking should be ok, no matter what the content, after all, if you link to one of my sites I can replace the contents of that site after the fact by something that is copyrighted, in no way should an action by me make you liable. This will decide the future of the web.

  • Law enforcement (Score:3, Interesting)

    by doas777 ( 1138627 ) on Friday June 26, 2009 @01:21PM (#28486095)
    It seems to me that the powers that be have it backward. instead of using technology to enforce the law, they should use it to make the law irrelevant. The internet could have saved us from many laws, but no, they just went and wrote more of them.

  • Do you blame the road if the car is stolen? (Score:5, Insightful)

    by decipher_saint ( 72686 ) on Friday June 26, 2009 @01:21PM (#28486101)

    A search engine isn't some magic machine that developers plug wishes and rainbows in and tell it not to be naughty (especially in the age of ever-changing legally defined naughtyness).

    A search engine simply leads to data, for that to work it has to store some part of it. The reality is that a search engine is completely ignorant of morals, laws and copyright.

    Data is collected. Data is stored. Data is Data.

    • Agreed. I wonder if anyone has the details on why seeqpod was knocked off the air.

      Seems to be the same issue?

      • seeqpod was one of my favorite sites. very unhappy about it being killed. it was nice to punch in a band, hear a few tracks and see if you liked it or not.

        depending on the user, it could be pre-sale research which would be a good thing for record companies.
    • How dare you profit from somone else's privaterring!

      • "How dare you profit from somone else's privaterring!"

        I like that analogy quite a bit actually, if you take the search engine and make it the sea. How do you find out if your content is stolen? Search for it! Then chase the pirates down by searching for them.

  • Just tellin folks WHERE to get the illegal goodies (Score:1, Interesting)

    by Anonymous Coward

    For a fee for them of course (in the form of ads I'm sure)

    Getting paid to tell people where to go to easily break the law. What a racket.

    If some creepy guy was lurking on a street corner, trying to sell information on where to go to rape some kidnap victims, would that be ok?

    Since he didn't kidnap them, and he can't actually _make_ you rape them, he is a blameless angel, no?

    • Re: (Score:1, Interesting)

      by Anonymous Coward

      So, we should arrest people who own DNS servers because they point to IP addresses that could host a webserver with illegal content?

    • They don't discriminate in favor of illegal content, you ask them where to find such-and-such and they give you a list of websites that list it as part of their content. This could be used as a tool by those who legitimately hold the copyright to find those who post their content online without their permission, but they would rather just shut it down.
    • No, your argument isn't sound.

      Because this isn't some creepy dude telling where to rape some kidnap victims. This is more like a machine that tells you when and where the next public illegal viewing of a movie is gonna be, most likely in your home, and then a company sues the creator of the machine for showing everyone where these events are being held. It seems kind of petty to me.

    • Re: (Score:2)

      by 2short ( 466733 )
      No, it's like if you ask me if I've seen a guy in a red hat and I tell you. I haven't any idea who the guy in the red hat is. You brother? Your shrink? Should I be arrested because he might be your drug dealer?
  • Now you can't index the web because somewhere, somehow in all the world wide web someone posted something that in some country could be challenged as illegal. You can't have any kind of input from your users, because some "malicious" (or not with a ring of 3+ international laws degree deep knowledge) could put a link to a place that have content that could be objectionable in some country.
    Or you must watch and approve at hand with a bunch of lawyers on your side anything that you will show in your site, com

    • What if the linked site replaces the link target with something "objectionable"?

      You need to constantly check and recheck everything that is not created/uploaded by you!

  • one of my fave tools is hounded similarly (Score:3, Interesting)

    by Ralph Spoilsport ( 673134 ) on Friday June 26, 2009 @01:44PM (#28486353) Journal
    There's a site that uses Google search systems to find music on blogs called chewbone. [blogspot.com] It's been a great tool for me. I have a few thousand vinyl records I've collected since the early 70s, and a lot of it is really obscure weird shit that never made CD, and I'll be damned if I'm going to piss several thousand hours away digitising it. A few here and there, sure. But not the bulk. So, it's much easier to search and find other people who have done a few and uploaded them. Saves tons of time and effort.

    The problem is, chewbone is regularly slammed by Google for his efforts. Bunch of assholes, IMHO. (chewbone - if you're reading this - hat's off, dude. Thanks!)

    RS

    • Yep, the RIAA and Google has hounded me about http://chewbone.blogspot.com./ [chewbone.blogspot.com] I don't have any links to music, all I give is a Google Custom Search engine tuned for mp3 blogs. This is a widget provided by Google itself! One can get any link that my custom search engine directly in Google Blog search, although mine is much more targeted so one doesn't have to wade through pages of so-so links. Why I am violating copywrite laws by using Google technology is beyond me. Almost all of the mp3 blogs that have

  • If it wasn't for [REDACTED]-[REDACTED]'s actions I'd have never heard of this [REDACTED] search. So really, [REDACTED]-[REDACTED] just indexed an illegal service for me and should now have their own premises raided.

  • Search Engines Should Be Legit (Score:3, Interesting)

    by brit74 ( 831798 ) on Friday June 26, 2009 @01:48PM (#28486405)
    I don't see the problem with what they (Scopelight) were doing. As long as they are connecting to infringing websites, then authorities can go after the websites themselves (rather than the search engine).

    I'll also add that this is not the same thing as PirateBay, since PirateBay is a torrent tracker - the people uploading/downloading information aren't websites, but they are located at an ever-shifting number of changing IP addresses. Heck, they could be at a coffeeshop's free wifi while filesharing - and who can possibly track them down? Further, the PirateBay goes out of their way to hide filesharers identities.

    • Re: (Score:3, Insightful)

      by icebraining ( 1313345 )

      Further, the PirateBay goes out of their way to hide filesharers identities.

      It's sad how people are more and more assuming that privacy is only important to criminals.

  • You'd think that publishers and other copyright holders would want to encourage search sites. After all, they let you find your own work quickly, so you can easily go after the actual infringers.

    Trying to shut down search sites for copyright infringement is a good example of why the phrase "shooting yourself in the foot" was invented. Why would you want to shut down the sites that are fingering infringers in such a convenient manner? Do you really want to build your own search engine, then buy a flock of

    • I think there reasoning goes something like this... If we shut down the one place where the majority of people go to find our stuff (search engine) then we don't have to go through the legal hassle of tracking down the 50 sites sharing our content. To draw a car analogy, you could shut down a dealership to stop them from producing cars that may or may not be used illegally, or you could spend millions patrolling borders and checking every vehicle from that dealership that crosses the border....oh wait...

  • Sad Development (Score:1, Offtopic)

    by sherriw ( 794536 )

    I liked Surf the Channel back when it was small and relatively unknown. If I missed a show it was usually the only way I could find it- because sites like Hulu and the official Network sites are blocked to Canadians. So, I could watch the episode and get back to watching the series each week on TV.

    Surf The Channel always made it abundantly clear all over their site that 1) they do not host any videos and 2) you are leaving their site and going to another site and STC was not liable for any 3rd party site's

  • DMCA (Score:3, Insightful)

    by burris ( 122191 ) on Friday June 26, 2009 @02:56PM (#28487321)

    10 years ago the US Congress had the foresight to pass the DMCA [cornell.edu] which protects search engines, ISP caches, and similar technologies from this kind of nonsense. Too bad other nations haven't followed the USA's lead in this respect.

    • Re:DMCA (Score:4, Insightful)

      by arotenbe ( 1203922 ) on Friday June 26, 2009 @03:14PM (#28487601) Journal

      10 years ago the US Congress had the foresight to pass the DMCA [cornell.edu] which protects search engines, ISP caches, and similar technologies from this kind of nonsense. Too bad other nations haven't followed the USA's lead in this respect.

      Indeed, while lots of people on Slashdot hate the DMCA for its lack of penalties for abusive takedown notices, the protection for search engines and the like is definitely necessary for the internet to continue in the form we know it today.

  • The internet is a interesting and powerful tool. It has changed the way we look at the distribution of information. Laws are being applied to concepts that are to young. There are growing pains. Unfortunately, the government is listening to companies instead of individuals. There are abusive laws that prop these companies up. I think that copyrights are dead since the cost of transference has been reduced to near zero. Artists must say its frustrating to hear this. I don't understand why though.

    How much d

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