You've probably noticed when searching using Google that when you start typing it starts making suggestions for the rest of the search terms. These are largely based on Google's records of common searches. For people signed in to Google, this can also include their own previous searches. There's been some concern about privacy in regard to this, though Google say that they delete it after 2 weeks without exception. However, that's not the only concern raised about this service.
Early in 2010, in France, the Syndicat National de l’Édition Phonographique brought a civil case against Google & Google France, on the grounds that Google Suggest, as it was then known, was suggesting as additional search terms, whenever people typed in the name of albums or songs, words such as “torrent”, “megaupload”, “rapidshare”. Rapidshare is a file sharing & storage site, Megaupload was similar but has since been shut down over accusations of copyright infringements. Torrent is a file type used by BitTorrent, a protocol used for peer to peer file sharing, where files are stored in a distributed way across different peoples' computers. None necessarily used for distribution of illegally copied files.
The SNEP were invoking a provision of the Code de la propriété intellectuelle, article L336-2, which reads as follows -
“En présence d'une atteinte à un droit d'auteur ou à un droit voisin occasionnée par le contenu d'un service de communication au public en ligne, le tribunal de grande instance, statuant le cas échéant en la forme des référés, peut ordonner à la demande des titulaires de droits sur les œuvres et objets protégés, de leurs ayants droit, des sociétés de perception et de répartition des droits visées à l'article L. 321-1 ou des organismes de défense professionnelle visés à l'article L. 331-1, toutes mesures propres à prévenir ou à faire cesser une telle atteinte à un droit d'auteur ou un droit voisin, à l'encontre de toute personne susceptible de contribuer à y remédier.”
This gives an industry association such as the SNEP the right to ask a court to ask anyone in a position to protect intellectual property to take action to do so.
Google were successful at first instance, in the Tribunal de Grande Instance in Paris. SNEP appealed, disputing Google's arguments that the provisions of article L336-2 were only applicable to internet serivice providers & those hosting websites, & rejecting arguments based on free expression. Google pointed out that they had already done as the SNEP had asked. The Paris court of appeal heard the case, after a discussion of exactly how involved Google France was, since Google.fr was run by Google Inc, Google France being concerned with things like marketing. The SNEP admitted not having researched this in detail. On the substantive question, the SNEP argued that Google Suggest was providing a shortcut for people who wanted illegal downloads & that deleting them from the possible suggested search terms was a proportionate response. Google argued that article L336-2 applied where an infringement of intellectual property has occurred & has been reported, but that autocompleting search terms wasn't itself an infringement, that the sites the searcher was being directed to weren't in themselves illegal, but merely created the possibility for users to infringe. They argued that the measure wouldn't be effective since the sites themselves would still be there, making the suppression of the search terms disproportionate.
The court said that the text of the article didn't specify that it only applied to ISPs & hosts of websites, that the right to free expression protected by Article 10 of the European Human Rights Convention didn't help Google since it didn't preclude the protection of intellectual property, but that the text of the article did require an actual infringement. However, the court said that suggesting these terms wasn't an infringement, rather that it was those using these sites to exchange copyright files without permission who were infringing the copyright, & that Google couldn't be held responsible for what the users of those sites did with them. The court of appeal therefore upheld the lower court's decision.
The SNEP therefore appealed further to the Cour de Cassation, France's highest court for most civil cases. The Cour de Cassation reversed the decision & found for the SNEP, on the basis that the measures requested would have some effect in making it harder to find files which had been illegally copied, & so the provisions of article L336-2 could be used. The case was remitted to the lower court to apply the Cour de Cassation's reasoning. Subsequently Google announced that they would take further action to reduce the priority in their searches of sites accused of copyright infringements. The SNEP welcomed the decision & Google's action, but said that search engines should go even further to protect rights holders.
References
References
No comments:
Post a Comment