In Parker v. Google, the Third Circuit Court of Appeals has held that Google is like a "copy machine" that cannot be held liable for copyright infringement over the content of its search engine. The court also held that Google cannot be held liable for third-party defamation which appears in its archives.
In 2004, I sued Google for defamation and copyright infringement, claiming that their archiving of USENET postings constituted direct infringement, as well as vicarious and contributory infringement committed by third parties. While the wording was anything but crystal clear, the appellate court, by claiming that amendment to the complaint would have been futile in affirming the denial of the lower court motion for leave to amend, has shown that it is not sympathetic to DMCA claims of this nature.
Some key excerpts from the ruling include:
"Additionally, to state a direct copyright infringement claim, a plaintiff must allege volitional conduct on the part of the defendant. See CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 551 (4th Cir. 2004); Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361, 1370 (N.D. Cal. 1995). The District Court determined that Parker failed to allege any volitional conduct on the part of Google in archiving USENET posts." (p. 6).
Here, the court has said that archiving USENET is an "automatic" function lacking in volition. Obviously, Google has volition over whether or not it chooses to run the archive in the first place, so the court has held that the archiving is and of itself not illegal. This essentially gives Google protection under the DMCA to archive USENET with impunity and put the burden on the copyright holder to send a takedown notice.
The court went on to liken Google to a "copy machine" as follows:
"In CoStar Group, the Fourth Circuit drew an analogy between an internet service provider (“ISP”) and the owner of a traditional copy machine. We agree with this analogy as it applies to Google in this case. The Fourth Circuit noted that “a copy machine owner who makes the machine available to the public to use for copying is not, without more, strictly liable under [the Copyright Act] for illegal copying by a customer.”
373 F.3d at 550. The Fourth Circuit further stated that “an ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer.” Id. Thus, the Court determined that “the ISP should not be found liable as a direct infringer when its facility is used by a subscriber to violate a copyright without intervening conduct of the ISP.” Id. The Court further noted that “[w]hen an electronic infrastructure is designed and managed as a conduit of information and data that connects users over the Internet, the owner and manager of the conduit hardly ‘copies’ the information and data in the sense that it fixes a copy in its system of more than transitory duration.” Id. at 550-51."
Google is not a "conduit" of information in the sense that an ISP is, because they are not vital to the transmission of the information, but rather a third-party archive that collects the information *after* it has been published. Google Groups is a posting interface, but Google's USENET archive is not. Moreoever, Google USENET archive was not created in response to user queries, but by pirating the content on USENET itself for the archive. It is the act of building the archive which infringes.
Wirh regard to the claims of vicarious and contributory copyright infringement, by claiming that "Parker failed to allege that Google had a direct financial interest in the purported infringing activity." Again, the court is claiming that Google's search engine and archives are not "volitional" and that there appears to be no direct financial benefit to Google, for if either were the case, the court would also have said that this could be cured by amendment to the complaint, but they also affirmed the denial of leave to amend on the grounds that this would have been "futile." Unless the court is inviting me to file a new lawsuit that alleges what they claimed I did not allege, then they have sanctioned that conduct as well. Google appears to have broad DMCA immunity here.
The "meat" of this case, however, has been the defamation claims, even though they have attracted far less attention. Although I gave it a chance to carve out an exception, the court chose to follow Green v. America Online:
"Parker’s claims for defamation, invasion of privacy and negligence arise from Parker’s allegations that Google failed to address harmful content posted by others against him on the Internet. Parker did not assert in the first amended complaint that Google is the information content provider of the statements at issue. We agree with the District Court that Section 230 bars these three claims against Google. See Green v. America Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003)."
The Court clearly rejected "distributor" liability for defamation (as a republisher), and claims that I did not allege that Google was an "information content provider." If not alleging it were the problem, that would be curable by amendment, so when the court said amendment would be futile, it also said that Google should not be treated as the "information content provider" of the defamatory statements. The Supreme Court has never checked in on Section 230 immunity, although every circuit except the 7th, and a host of state supreme courts, have embraced it.
Section 230 has recently come under fire in a lawsuit filed against the "AutoAdmit.com" website. In that case, two female law students sued the website operators depsite this allegedly immunity. The suit was filed by a Yale Law professor who certainly is aware of this defense. That case was filed in Philadelphia, which is also governed by the Third Circuit. If the court didn't change Green here for the world's largest search engine, I doubt they will when it comes to a singular message board.
The exceptions I was seeking to have carved out are not minor: Section 230 was written for ISPs who could identify the third-party authors who post messages or send e-mail. With Google, or other boards on the web, the source might be anonymous and impossible to sue. The court's ruling all but destroys defamation law on the internet, since anyone who wants to "Googlebomb" another by posting negative statements that they know will be archived and searchable can just do so untraceably, with the target unable to seek redress from the courts and unable to remove the statements from the search engines, who don't fear lawsuits. If the Supreme Court does not reverse this decision, Congress will be the next step. At some point, enough people will suffer this injustice that the politicians will have to take notice, but we are not at that point yet. Instead, the candidates have taken to purchasing keywords on Google. I say don't vote for any candidate who feeds even one cent to that defamation and copyright infringement machine).
If Google is going to be treated as a "copy machine," look for quality free content on the internet to dry up fast. I do not write books or make them available to an audience for free only to have their value to advertisers diluted by search engines who can "archive" a copy of it, and use that archive to sell advertisements to my competitors, while forcing me to pay money to reach people who are often reading my work to begin with? What's to stop 1,000 "information retrieval tools" from "archiving" free content on the web (including Google's!) if there is no penalty for it other than having to wait for a DMCA notice on each infringement? Definitely not a victory for copyright holders, and I will likely be removing a great deal of free content from my site. The customer is always right, but that means *paying* customers. I'd rather help five people and get paid than help five thousand and not.
Next week I'll write about how it's possible to win a lawsuit on argument yet still lose it due to timing. In doing so I'll show more compelling evidence of gender bias in the courts than has been seen in a very long time.
Ray Gordon is an internet publisher and a write-in candidate for every elected office in the United States. He urges you to vote for him as a protest vote whenever you don't like the choices in your election.
Court Reform, Not Tort Reform appears every Wednesday
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