Record Label Sues Google and Microsoft for Linking to Infringing Music–Blues Destiny v. Google

By Eric Goldman

Blues Destiny Records LLC v. Google, Inc., 3:09-cv-00538-WS-EMT (N.D. Fla. complaint filed Dec. 7, 2009) [warning: 1.5MB PDF]

Blues Destiny Records, a small Blues music label, doesn’t like RapidShare, a website that allows users to publish files, because users are posting its copyrighted music there. It also doesn’t like that people who search for the label’s artists in Google and Microsoft get search results that link to sites that link to allegedly infringing copyrighted copies on RapidShare. The complaint was ambiguously worded in describing whether Google and Microsoft directly link to RapidShare or only indirectly link to sites that link to RapidShare, but my own searches indicated that Google’s search results did not take searchers directly to RapidShare. So I believe the information flows are something like this:

Uploading user => RapidShare => site linking to RapidShare => search engine => searcher/downloading user, who goes to linking site and then follows the link to RapidShare to complete the allegedly illegal download

As is typical for lawsuits of this nature, the copyright owner didn’t sue either the uploading or downloading users. The copyright owner also didn’t sue the individuals who posted the links that take people to RapidShare. Instead, the copyright owner brings a frontal 17 USC 512 assault by suing RapidShare (theoretically eligible for 512(c) for hosting the infringing files) and the search engines, who are putatively covered by 512(d) for linking to infringing files (although this claim appears to be even more attenuated if the search engines actually were 2 links away from the download).

The copyright owner appears to have initially struggled with sending proper 512(c)(3) notices, but it got there (or close enough) eventually. The complaint acknowledges that Microsoft disabled the links after receiving some type of notice. As a result, I’m not sure how Microsoft could be liable if they expeditiously removed the links after receiving the copyright owner’s notices. Google apparently has not taken down the links (because I can still find them) after seventeen increasingly exasperated requests from the copyright owner, but Google’s delayed response/non-response could be due to the copyright owner’s imprecision about whether Google was actually linking directly to infringing RapidShare files or only to websites that had allegedly illegal links on them.

As for RapidShare, I didn’t see a registration of agent for 512 service of notice, so they may not be claiming 512(c) protection. Then again, the complaint says they are a German/Swiss operation, so they may be impossible to serve and sue in the US, and RapidShare may not have felt any need to satisfy a US law formality.

There have been other lawsuits against websites for linking to infringing content, but plaintiffs usually try to avoid suing power players like Google and Microsoft–both well-funded defendants who aren’t likely to roll over on this issue. One of the major exceptions is the Perfect 10 v. Amazon and Google lawsuit, which also involved Google’s links to infringing files (in that case, infringing copies of pornographic photos). That lawsuit led to an important but confusing Ninth Circuit ruling from 2007, which left open Google’s secondary liability for its links as well as Google’s eligibility for a 512 safe harbor for those links. Given the ambiguities of that opinion, the plaintiff’s action here isn’t clearly wrong as a doctrine matter. However, in my opinion, it is nevertheless ill-advised and unlikely to succeed.

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