04 August, 2016

A Torrential Result - No Requirement to Censor Torrent Search Results, Says Paris Court

Just the mention of 'torrent' files can send shivers down the spines of rightsholders and their legal representatives. Often synonymous with online copyright infringement, the BitTorrent protocol is actually a very legitimate way to send and receive files without having specific hosting facilities to do so, saving on costs and often bandwidth. In a nutshell, the protocol allows for an individual or entity to download a file from several sources, taking only pieces and ultimately compiling them into one completely copied file. Even though entirely legitimate, the protocol has been used by file sharers for some time, allowing for the efficient and fast downloading of illegal files from the Internet, often utilizing websites such as The Pirate Bay (or any other search engine, for that matter) to find the torrent files linking to the illegal content. With this availability so ubiquitous, could rightsholders censor search results on search engines to prevent copyright infringement?

While there are no official translations of the case available, this writer has used machine translation for the purposes of providing quotations, and any translations should be regarded as unofficial and (possibly) not fully accurate.

Two recent cases in France aimed to deal with this issue head-on, where the French music producers' association, Syndicat national de l’Ă©dition phonographique (SNEP), took both Google and Microsoft (the decisions are only available in French) to court. Under Article L336-2 of the Code of Intellectual Property, a court can, upon application, force an intermediary to take all appropriate measures to prevent or stop such infringement, including, potentially, allowing and/or facilitating (through search results) access to torrent files.

Dealing with the case against Google, the Parisian Court found that, although Google France had no direct control over search results (ultimately controlled by its American patent company, Google Inc.), it still "...develops a commercial activity, which ensures funding for services offered free to users and participates operation the search engine business". They could not therefore, be exonerated from the claim brought by SNEP.

Leading the charge against Internet censors
The Court then moved onto discussing the admissibility of the claim, they quickly dismissed SNEP's claim due to a lack of ability to represent the parties in question (the artists named were Kendji Girac, Shy’m, and Christopher Willem). This was largely due to the SNEP's role as an enforcement provider for a select segment of the audio entertainment industry, and would not therefore qualify as a 'professional defense body' per Article L336-2. The Court ultimately rejected the case against Google, not forcing the search provider to censor the results containing torrent files to infringing files.

In a similar case, Microsoft faced a challenge in relation to its Bing search engine, which also provided access to results containing infringing music files from the aforementioned artists.The Parisian Court would not exonerate the company on similar grounds as Google's subsidiary, as the companies were tightly woven into the business of providing the search facilities.

The Court further rejected an assertion that Microsoft would be acting as a subsidiary by not blocking access to the infringing content, as Article L336-2 imposes no duty on companies to prevent access to infringing content. Although asserted by SNEP, Microsoft had not failed to comply with their notification procedure in Article 6-l-5 of the Law of Confidence in the Digital Economy, as the Court deemed that any action under Article L336-2 would be a separate action from the notification procedure. Ultimately, the Court rejected SNEP's entire case, as the censoring of all pages containing torrent links to infringing materials (concerning the artists in question now and in the future), would be "...general surveillance measure[s] and could cause the blocking of legitimate sites", even under the guise of protecting legitimate interests. They also added that the measures would be ineffective, and are not necessary, as the search facilities is seldom used to search for the artists in question with the term "torrent", which is quite easy to circumvent if needed.

Although this writer knows very little about French law, the cases seem quite interesting, especially in the context of the wider Internet. Allowing for the blocking of specific terms and the term "torrent" in a much broader scale would clearly impact the Internet experience many of us enjoy, be the use legitimate or not. The Parisian Court seems to have made a decision stemming from pragmatism and a deeper understanding of the Internet. While rightsholders would be dissatisfied with the decision, one can appreciate the balance that has to be struck when it comes to more overarching censorship measures.

Source: Ars Technica

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