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"Google The Publisher" is a Piracy Lawsuit Waiting to Happen

Did you read the most recent Link by Link column in the NY Times? It discusses Google’s efforts to get people to think of it as a publisher. It’s a thought provoking piece, and it’s definitely worth a read. But it also raises a troubling legal question.

But when the issue is anticompetitive behavior — a charge made by rivals and some businesses — Google has lately been emphasizing that it sees itself as a publisher, and it is appealing for different kinds of protections, in the realm of free speech.

How Google has decided to say this is almost as interesting as what is being said. The company hired Eugene Volokh, an influential conservative blogger and a professor at the University of California, Los Angeles, to write a paper last month. In it, he argues that Google search results are protected speech.

As remarkable as it might seem, Google wants you to see it as a third-party at some times and as a publisher at others. They want to have their cake and eat it too.

I’m fine with Google taking this position; there’s valid technical arguments to support it. Just look at the work that went into creating the code that generates search results; clearly there is original work involved.

But I also see an obvious problem with it. If Google stops being considered as an ISP and starts being identified as a publisher then wouldn’t that mean that Google gives up its Safe Harbor exception under the DMCA?

As I understand it, the safe harbor exception protects thrived parties from being liable for the acts of others. For example, a forum can be protected from liability for when it’s members upload pirated content (so long as they meet certain requirements, of course).

But it doesn’t protect pirates from their own actions. If a blogger is pirating content, his hosting company can claim the safe harbor exception but the owner of the blog cannot.He published the pirated content so he has no protection.

Google has responded to any number of DMCA takedown notices because of pirated content showing up in its search results.It has to respond, of course, or it will lose its safe harbor exception.

But if Google is a publisher, none of that matters. They can be sued directly for publishing search results that link to infringing content. And no, that’s not such a stretch; there have been any number of actions against "pirates" who only link to content rather than hosting or sharing it.

I am rather looking forward to the first time someone sues Google and submits this paper as evidence; I want to see what the judge decides. Google might have to defend themselves on the linking issue. With luck  they might win and set a legal precedent.

On the other hand, I could be looking at this from the wrong direction; becoming a publisher might not cost Google its safe harbor.  Also, most people would prefer to send Google takedown notices rather than sue, so this point might never come before a judge.

But it’s still an interesting legal question.

P.S. If a lawyer wants to post an explanation of why I’m wrong, please do. The comments are open.

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