Out-Law News | 08 May 2012 | 2:55 pm | 5 min. read
Google, Yahoo! and Microsoft have drawn up a series of "principles" to guide how rights holders should act when issuing them with requests for the removal of infringing content from search indexes as well as the responsibilities search engines themselves should be required to conform to. The plans were published (4-page / 43KB PDF) by digital rights campaign group the Open Rights Group (ORG) who obtained details of the proposals via a freedom of information (FOI) request to the Government.
Under the plans search engines would be required to provide a way for rights holders to inform them that their rankings display links to pirate content. Search engines would have to quickly remove content on receipt of a valid takedown notice.
Rights holders takedown notices would have to be targeted in order to "specifically identify infringing content" and should only issue them to search engines "after assessing their impact on any non-infringing uses and concluding that the takedown would not have an adverse effect on such non-infringing uses", the search engines' plans propose.
However, technology law specialist Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said the latter requirement sets standards rights holders would have to meet that are not currently required under EU law.
"The principles require that a rights holder only issue a notice of infringement after making an assessment of its impact on non-infringing uses of content and 'concluding that the takedown notice would not have an adverse effect on such non-infringing uses'," he said. "This principle seeks to interpret the protection given to search engine providers against liability as greater than that which is provided for under European law."
"Once a right holder has notified a search engine of an act of infringement, the onus is upon the search engine to act expeditiously to remove or disable access to the offending information. A search engine need only become aware of 'facts or circumstances from which infringing conduct is apparent' to lose its immunity against liability as provided for in connection with the provisions of the E-Commerce Directive."
"It is irrelevant to the search engine's obligation to respond to the rights holder's notification, whether or not the takedown notice would have an impact on non-infringing uses," Scanlon said.
The E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The Directive says that service providers are generally not responsible for the activity of customers and that member states must not put service providers under any obligation to police illegal activity on its service.
Service providers are not liable for infringement via their services if they do not have "actual knowledge" or an awareness of facts or circumstances from which an illegal activity is apparent, or having obtained such knowledge "acts expeditiously to remove or to disable access to the information". The Directive is implemented in the UK by the E-Commerce Regulations.
The Government has been chairing discussions between rights holders, internet companies and other stakeholders in a bid to establish self-regulatory regimes for tackling online piracy. The Government has previously announced its reluctance to introduce new regulation to address the matter.
Rights holders groups had previously drafted a voluntary code of practice they want search engines to sign up to that would, if introduced, require search engines to relegate sites in their rankings for repeatedly making pirated content available and boost links to other "licensed" sites under a new "certification" scheme.
However, the ORG's FOI request has revealed that the search engines have come up with an alternative plan that would not involve any artificial prioritisation in their rankings. Instead they drafted guiding principles for the operation of copyright 'notice and takedown' procedures they would comply with to ensure that those processes are both "effective and expeditious".
The principles require that rights holders ask for infringing content to be removed by "the infringing actor or from the online hosting service" prior to requesting that search engines remove links to the content.
Rights holders could not ask search engines to remove links to content unless they "actually" appear in the search engines' search results or advertisements. The principles also require that the rights holders "substantiate" their ownership of the material they claim is being infringed as well as their claims on that infringement.
The rights holders would also have to agree to a mechanism that would allow search engines to reinstate links to content that they had previously taken down in certain circumstances following receipt of "counter-notices". The principles require the search engines to "consider" counter arguments to takedowns in order to "further free speech, creativity, expression, and innovation online".
Search engines would not be liable "for restoring content in response to counter-notices" under a "reasonable procedure" rights holders would have to agree to.
The proposals require rights holders to be "accountable" for issuing "improper" takedown requests and would see them publish all notices they issue to "support transparency in the takedown process".
Under the principles, rights holders could not initiate legal action against search engines for providing links to pirate content unless they have subscribed to the "standards" outlined under the search engines' proposed notice and takedown process and unless "the search engine has refused to remove the specific noticed links".
"Search engines play a vital role in free speech, creativity, expression, and innovation by organising billions of web pages in a way that they can be more easily discovered by internet users," Google, Yahoo! and Microsoft said in their proposal document. "Search engines benefit creators and rightsholders by helping connect users to artists and content producers. Search engines are not the source of infringing content. Removing links from a search engine does not remove illicit content from the internet."
Minutes (2-page / 164KB PDF) from a meeting of stakeholders to discuss the search engines' plans, which were also obtained by the ORG under FOI, revealed that rights holders had expressed "disappointment" in the proposals and the fact that the search engines had not referred to its suggestions over search ranking prioritisation.
"[Rights holders] noted that [the proposals] did not refer to or respond to the rights holders own earlier paper; it did not include any detail on influencing search rankings; and that it set out revisions to the notice and take down procedure which would make it more difficult for rights holders," according to the minutes. Geoff Taylor, chief executive of the British Recorded Music Industry (BPI), had said "search engines should engage more responsively with responsible partners like the BPI."
The minutes from the meeting, which took place on 28 February, recorded that Culture Minister Ed Vaizey asked the search engines to "provide a short paper explaining their key concerns around prioritisation of search results". Vaizey said that his boss, Culture Secretary Jeremy Hunt, "does want to see proposals on" prioritisation, according to the minutes.
The ORG has previously expressed its 'alarm' that the Department for Culture, Media and Sport does not hold any evidence about the "scale and nature" of online copyright infringement – which the lobbyists said they had discovered via another FOI request to the department last year.