Record label attempts to make Google and Microsoft liable for linked-to infringements

Out-Law News | 15 Dec 2009 | 9:06 am | 1 min. read

A record label is suing Google and Microsoft, claiming that the fact that the companies' search engines link to pages that themselves contain links to copyright-infringing material, they are liable for that copyright infringement.

Blues Destiny Records has filed a law suit in Florida arguing that Google and Microsoft profit from the links to sites that distribute unlicensed copies of music and that they could stop it but don't. They should bear some of the liability for the copyright infringement, it argues.

"Because search engines capitalize on the (search) requests of its users, including those who wish to obtain illegal 'free' copies of copyrighted sound recordings, this use allows the search engines to grow user base and advertising revenue, and thus actively contributes to and induces countless acts of copyright infringement," said the suit.

"Although Google could screen or block access to websites known for hosting infringing music content, apparently they have chosen not to," it said.

The suit describes how the most relevant links on Google searches for various acts signed to Blues Destiny Records lead, in turn, to, where it said free, unlicensed copies of albums could be downloaded.

The claim is based on the fact that Google and Microsoft link to pages that then link to unlicensed copies of the albums.

"[Google and Microsoft] facilitated, materially contributed to, and caused infringement of [Blues Destiny Records's] financial benefit by knowingly and systematically directing internet users, via search results generated by their respective search engines, to the illegal and infringing copies of [the] recordings on," said the law suit.

Search engine service providers in the US, though, are shielded from liability in relation to material they link to in a law designed to ensure that such services are possible. Legislators created the exception because they believed that making information service providers liable for the content of all links would make much of the internet impossible to operate.

Section 512 of the US Digital Millennium Copyright Act (DMCA) says that online publishers can be exempted from responsibility for infringing material if they are only facilitating another's publication of it and are not actively publishing it themselves, and if they have and use procedures for the swift take-down of infringing material they are informed about.

Service providers are only protected by that exception if they remove offending material when they are informed of it. Blues Destiny Records claims that Google and Microsoft were informed of the copyright infringements but took no action.

It said, though, that Microsoft did take material down once the law suit was filed. "As of the filing date of this complaint [Microsoft] removed from its search result the links to websites offering illegal copies of Plaintiff's recordings," it said.

The suit accuses the companies of vicarious copyright infringment and inducement of infringement of copyright as well as direct copyright infringement.

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