Copyhype

Today’s guest post comes from Devlin Hartline, a J.D. candidate at Loyola University New Orleans College of Law with an expected graduation date of May, 2012. His primary interests are in copyright, internet, and constitutional law. He lives with his wife and two young sons in Metairie, Louisiana. You can follow him on Twitter: @devlinhartline.

Introduction

Apparently, Google thinks it should be above the law. It hasn’t explicitly said so, of course, but that’s my takeaway from its protest of the Stop Online Piracy Act (SOPA) and the PROTECT IP Act this past January. Specifically, Google thinks that it should be allowed to list rogue sites in its search results without any court having the power to order it to stop. Google’s position strikes me as self-contradictory. On the one hand it says that Congress is “trying to do the right thing by going after pirates and counterfeiters.” On the other hand it says that search engines shouldn’t “be forced to delete entire websites from their search results.” What Google glosses over is the fact that search engines like itself are part of the problem—search engines drive traffic to rogue sites by listing them in their search results. This is why courts already order search engines to delist rogue sites.

The day before the protests, Google provided a written statement to the Huffington Post announcing that it’d be joining the grumblers: “we oppose these bills because there are smart, targeted ways to shut down foreign rogue websites without asking American companies to censor the Internet.” Sure enough, the next day Google blacked-out the logo on its home page. When users clicked on the self-censored insignia, they were taken to an information page, “End Piracy, Not Liberty.” From there, a tab led to another page, “More about SOPA and PIPA,” where Google sketched out the reasons behind its opposition. Google’s three main gripes with the bills can be boiled down thusly: (1) it’s censorship, (2) it’ll hurt innovation, and (3) it’s futile. Noticeably absent from this explanation is any acknowledgement that search engines meaningfully contribute to online infringement.

I can’t help but feel cynical. The same Google that unilaterally delisted over 11 million websites from its search results because they were too “spammy and low-quality” thinks it’s wrong that a court should order it to delist even one single site that has been determined to be dedicated to infringement. The same Google that forfeited $500 million to the United States government after it got caught assisting foreign pharmacies in importing illegal drugs thinks it’s OK to assist foreign rogue sites in the commission of online piracy. If Google really thinks that preventing piracy is such a good thing, then why does it want to help rogue sites out by linking to them? As with many things, I think the answer is money—it costs real money to comply with a court order to delist a rogue site. The question is whether any of this should actually be Google’s problem. I think that clearly the answer is, “yes.”

“I Come From Cyberspace”

In his iconic “A Declaration of the Independence of Cyberspace,” Grateful Dead lyricist, EFF cofounder, and cyberlibertarian John Perry Barlow threw down the gauntlet on behalf of cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . . I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. . . . Cyberspace does not lie within your borders. . . . Ours is a world that is both everywhere and nowhere, but it is not where bodies live.

Barlow’s quaint and utopian, if not anarchic, vision of cyberspace as existing somewhere untouchable by the “Governments of the Industrial World” never was. Nor would it ever come to be. In fact, in an ironic twist of fate, the “would-be Cyber-Jefferson” Barlow delivered his Declaration on the same day that President Clinton signed the internet-regulating Communications Decency Act into law. ¹Alex Kozinski & Josh Goldfoot, A Declaration of the Dependence of Cyberspace, 32 Colum. J.L. & Arts 365 (2009). While cyberspace as a metaphorical place does not lie within any actual borders (and what metaphor ever does?), the same cannot be said for the people that make cyberspace possible—the so-called intermediaries. According to Black’s Law Dictionary (9th ed. 2009), an “intermediary” is “a mediator or go-between; a third-party negotiator.” An intermediary, then, is just a middleman. Cyberspace may be “everywhere and nowhere,” but the intermediaries all dwell in this world of “flesh and steel,” anything but “independent of the tyrannies.”

For netizens, cyberspace’s intermediaries take on familiar forms such as internet service providers, payment processors, content hosts, search engines, and advertising networks. Use of intermediaries in mass communications is nothing new; yesterday’s switchboard is today’s network switch. Without intermediaries, mass communication platforms such as the internet wouldn’t exist. The internet, after all, is just a global network of interconnected intermediaries who host, transport, and organize our data. And given their “essential role in facilitating online communication, intermediaries often are capable of exercising authority over wrongdoers who are otherwise unreachable” for a variety of reasons. ²David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 378-79 (2010). Instead of circumventing the middlemen, the digital revolution has simply replaced one set of intermediaries with another. The internet’s decentralized structure has, by design, engendered the proliferation of a new set of intermediaries.

There’s no doubt that intermediaries like Google make infringement on the internet possible, for without the intermediaries there’d be no internet to infringe on in the first place. The difficult question then is which intermediaries, if any, should be held responsible for the infringement they help make possible. Should a search engine like Google be liable for infringement that takes place on the rogue sites it links to in its search results?

Common Law Secondary Liability

Copyright infringement is a tort, or a civil wrong. The Copyright Act, in § 106, provides that “the owner of copyright . . . has the exclusive rights to do and to authorize” certain enumerated acts, including making copies, preparing derivative works, and distributing copies. § 501(a) of the Act provides that “[a]nyone who violates any of the exclusive rights of the copyright owner . . . is an infringer of the copyright.” Thus, only the copyright owner has the right, say, to make copies or to authorize the making of copies, and anyone else who does so is liable for infringement.

Direct copyright infringement occurs when someone, called the primary or direct infringer, is held liable for their own infringing acts. If I unlawfully make copies of your copyrighted work, I’m a primary infringer. Indirect copyright infringement, on the other hand, occurs when someone else, called the secondary or indirect infringer, is held liable as well. If someone else unlawfully authorizes me to make copies of your copyrighted work and I do so, I’m a primary infringer and the party that gave me authorization is a secondary infringer. Even though that other party didn’t personally make the copy (only I did), the law holds them responsible because they played a significant part in my unlawful copying.

The idea of placing liability on someone other than the primary infringer is what’s referred to as secondary liability in copyright law. It’s called other things too, like intermediary liability, indirect liability, third-party liability, or derivative liability. Whatever it’s called, the basic notion is the same: If someone else helps me to infringe, by, say, inciting or facilitating my infringement, then that someone else will be liable for my infringement since they helped to bring it about. The idea of holding responsible those who help others commit unlawful acts is not unique to copyright law. Perhaps more familiar are the similar concepts of accomplice or accessory liabilities in criminal law. If I help you plan a robbery or act as your lookout while you rob a bank, I’m liable because I helped you commit your crime. By making it unlawful to help others commit unlawful acts, we deter people from doing so.

The Copyright Act itself does not expressly provide for secondary liability for infringement. Nonetheless, the Supreme Court has noted that the “absence of such express language in the copyright statute does not preclude the imposition of liability for copyright infringements on certain parties who have not themselves engaged in the infringing activity.” ³Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 434 (1984). Indeed, secondary liability concepts in copyright law have been developed over time through judge-made, common law. “Courts have long recognized . . . that one may be held liable for the infringing acts of another.” ⁴Demetriades v. Kaufmann, 690 F.Supp. 289, 292 (S.D.N.Y. 1988). Two distinct branches of secondary liability have been developed: “vicarious liability (grounded in the tort concept of respondeat superior) and contributory infringement (founded on the tort concept of enterprise liability).” ⁵Id. (internal quotation marks omitted).

While it’s true that the Copyright Act doesn’t explicitly refer to secondary liability in so many words, § 106’s grant of the exclusive right “to authorize” in fact indicates Congress’s endorsement of court-developed contributory liability principles. The relevant House Report explains: “Use of the phrase ‘to authorize’ is intended to avoid any questions as to the liability of contributory infringers.” ⁶H.R. Rep. No. 94-1478 at 61; the House Report also endorses common law vicarious infringement, id. at 159-60 (“a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. . . . The committee has decided that no justification exists for changing the existing law . . . .”). This comes as no surprise, since, as the Supreme Court noted over a century ago, contributory liability is a principle “recognized in every part of the law.” ⁷Kalem Co. v. Harper Bros., 222 U.S. 55, 63 (1911). The Second Circuit’s formulation of contributory liability is oft-quoted: “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.” ⁸Gershwin Pub. Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). Thus, liability for contributory infringement turns on two elements: (1) knowledge, and (2) inducement, causation, or material contribution. So where does Google’s search engine fall within this rubric?

Google’s Secondary Liability

Conveniently enough, the Ninth Circuit addressed this very point at length in Perfect 10 v. Amazon.com. ⁹Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). There, plaintiff Perfect 10 argued that defendant Google was secondarily liable for infringement occurring on third-party websites because Google provided links to these sites in its search results. The circuit court started its analysis by noting that contributory liability is examined in light of the “rules of fault-based liability derived from the common law,” a principle of which is that intent may be imputed: “Tort law ordinarily imputes to an actor the intention to cause the natural and probable consequences of his conduct.” ¹⁰Id. at 1171 (internal quotations and citations omitted). Thus, since its intent to encourage direct infringement may be imputed, an actor (like Google) may be liable for contributory infringement if it knowingly takes actions (like linking) that are substantially certain to result in direct infringement by others.

The court of appeals then looked to two cases, Napster ¹¹A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). and Netcom, ¹²Religious Tech. Ctr. v. Netcom On-Line Commc’n Services, Inc., 907 F.Supp. 1361 (N.D. Cal. 1995). for the application of these principles in cyberspace. In Napster, the Ninth Circuit stated that “if a computer system operator learns of specific infringing material available on his system and fails to purge such material from the system, the operator knows of and contributes to direct infringement.” ¹³Perfect 10, 508 F.3d at 1171 (internal quotations omitted). Similarly, the district court in Netcom held that if an internet service provider knows or has reason to know that material on its system is infringing and fails to remove it, then it is liable for contributory infringement since its failure constitutes substantial participation in the resulting infringement. ¹⁴Id. at 1171-72. Both cases stand for the proposition that a “service provider’s knowing failure to prevent infringing actions” can be the “basis for imposing contributory liability” since intent to cause the natural result of its conduct may be imputed. ¹⁵Id. at 1172.

The Ninth Circuit noted that a central theme of Napster and Netcom is the fact that online services have the ability to drastically amplify the effects of infringing activities. As the Supreme Court noted in Grokster, ¹⁶Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). when a service enables individuals to commit infringement on a large scale, the argument for imposing indirect liability on that service is particularly powerful. The court of appeals observed that when a service is used widely to infringe, it is simply not possible for a copyright owner to enforce its rights against all of the direct infringers. Sometimes “the only practical alternative” is “to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement.” ¹⁷Perfect 10, 508 F.3d at 1172. Accordingly, the circuit court held that “a computer system operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system and can take simple measures to prevent further damage to copyrighted works yet continues to provide access to infringing works.” ¹⁸Id. (internal quotations and citations omitted).

The Ninth Circuit then turned its sights on Google: “There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials.” ¹⁹Id. Thus, the court of appeals held that Google could be liable as a contributory infringer if it: (1) knew that infringing materials were available using its search engine, (2) could take simple measures to remove the links, and (3) failed to do so.

The Ninth Circuit’s opinion comports with the DMCA safe harbor provisions. Under § 512(d) of the Copyright Act, a search engine such as Google is significantly shielded from liability for infringement that occurs via links it provides so long as the links are quickly removed or disabled when the search engine becomes aware that they lead to infringing material or activity. Thus, the DMCA seeks to encourage the delisting of rogue sites from search results by giving search engines safe harbor if they remove links when presented with proper takedown notices (which are deemed as a matter of law to impart knowledge of infringement). This embodies Congress’s judgment that it’s generally a bad thing for search engines to provide links to rogue sites. According to both Congress and the courts, search engines that knowingly link to rogue sites are opening themselves up to secondary liability for the infringement they help bring about. And given that “Google is ranked #1 in the world” according to Alexa’s traffic rankings, its contribution to the problem of online infringement is all the more impossible to deny.

Censorship, Innovation, And Futility

When the argument is properly framed as whether Google should be allowed to substantially assist worldwide infringement via its search engine, its counterarguments about censorship, innovation, and futility fall apart. Google complains that “search engines could be forced to delete entire websites from their search results.” There’s no doubt that under some broad definition of the word, a court ordering Google to delist a rogue site is censorship. But so what? All law enforcement efforts are censorship on some level. The whole point is to censor—that is, to stop—the party that’s unjustifiably causing harm. Google can be forced to “delete entire websites” from its search results because those links are significantly contributing to whatever infringing material or activity they point to. What’s being censored is Google’s excessive role in the problem of online piracy. If Google really thinks that pursuing piracy is a lofty goal, you’d think it’d want to remove its own links to these rogue sites.

Google’s complaint about innovation is equally vapid. It starts with the curious assertion that “internet companies would have to monitor everything users link to or upload or face the risk of time-consuming litigation.” This is simply not so. It is fundamental to secondary liability doctrine that intermediaries “do not take on an affirmative duty to act or to prevent tortious or illegal conduct, but only a duty not to facilitate known wrongdoing.” ²⁰David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373, 505 (2010). Google has no duty to monitor the links it provides in its search results, and nothing in the Stop Online Piracy Act or the PROTECT IP Act would establish such a duty—in fact both bills explicitly say there’s no affirmative duty to monitor. Google also points to letters from internet companies, venture capitalists, and entrepreneurs making vague arguments about how the bills would stifle innovation generally. But innovators like Google are not exempt from the law, and it’s hard to see how complying with court orders is unduly burdensome for a company like Google that already has such mechanisms in place. Google’s service creates a harm to innocent third parties that is significant enough to warrant holding it responsible for that harm. It’s disingenuous for Google to complain about the cost of eliminating a harm that Google itself is creating.

Google’s final argument is that “SOPA and PIPA won’t even work” since rogue sites will just relocate. Instead, it argues that “Congress should consider alternatives like the OPEN Act” that take a follow-the-money approach. This argument is clearly self-serving. All of the bills (SOPA, PROTECT IP Act, and OPEN Act) target the money supplies of rogue sites. If targeting the money supply is by itself effective, then why does adding the requirement that search engines also delist rogue sites suddenly make the whole thing not work? That makes no sense. Google’s support of the OPEN Act is better explained by the fact that the Act contains no provisions dictating that search engines must delist rogue sites. In other words, the OPEN Act doesn’t make Google responsible for the harm that it chooses to create (and, I assume, to profit from). How very convenient. Google’s complaint here is not about the futility of the bills—it’s about Google’s bottom line. And that’s what all of this hoopla has been about all along, if you ask me.

Follow me on Twitter: @devlinhartline