Mini music label Blue Destiny Records has sued both Google and Microsoft for allegedly "facilitating and enabling" the illegal distribution of copyrighted songs.
Filed on Monday with a US federal court in Northern Florida, the suit is an attempt to choke off the distribution of Blue Destiny tunes on the Germany-based file-sharing service RapidShare, also named as a defendant. It accuses RapidShare of knowingly running "a distribution center for unlawful copies of copyrighted works," while claiming that Google and Microsoft are propping the company up.
According to the suit, RapidShare benefits from ad relationships with the two search giants. "RapidShare generates revenue by selling subscriptions for its high-speed download services, and through advertising dollars generated by its advertising partnerships with Google and Microsoft," the suit reads. "RapidShare's business success is accomplished only with the knowing assistance of these two top search engines - Google and Microsoft's Bing."
But the overarching claim is that RapidShare is able to "achieve consistent prominent ranking in search engine results that direct users to websites where illegal 'free' copies of [Blue Destiny's] recordings may be stolen." US copyright law exempts companies from liability if they're merely linking to infringing content - but only if they're unaware of the infringement and don't receive financial benefit.
The suits insists that Google and Microsoft benefit financially because they generate ad revenue from search results. And both companies have received DMCA takedown notices requesting removal of the links in question.
As Santa Clara University prof and tech law blogger Eric Goldman points out, this is hardly the first lawsuit to attack a company for merely linking to infringing content on other sites. But it's unusual that the defendants have such recognizable names.
"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," Goldman writes.
There is at least one precedent, he says: a 2006 suit against Google and Amazon from "adult men's magazine" and online ad outfit Perfect 10. That suit ended with a rather ambiguous court ruling, leaving the door open for the likes of Blue Destiny - though Goldman questions whether the label's destiny is a major search engine scalp.
"Given the ambiguities of [the Perfect 10 opinion], [Blue Destiny's suit] isn't clearly wrong as a doctrine matter. However, in my opinion, it is nevertheless ill-advised and unlikely to succeed," he says.
That said, the suit may highlight some intriguing differences between Google and Microsoft in this gray area of online copyright law.
The suit's wording is inconsistent, but in places it appears to accuse Google of directly linking to downloads of unauthorized tunes. "Google's consistent and prominent ranking of links to illegal 'free' downloads of [Blue Destiny's] copyrighted recordings has devastated [Blue Destiny's] business," the suit reads, before pointing to specific RapidShare links that have appeared when users search Google for the Roy Powers song "Firing Line."
It would appear, however, that Google is not linking directly to such downloads. It links to RapidShare landing pages where the download urls are listed. In other words, Google's top "Roy Powers Firing Line" result points to a RapidShare page that serves up several links where you can download the song.
According to Eric Goldman, the suit's claims against Google lose some oomph when you consider that extra degree of link separation.
According to court documents, Blue Destiny - a blues label based in Destin, Florida - have attempted to remove the Google links in question via a DMCA takedown notice. But apparently, Google has not complied.
On the other hand, Microsoft has complied with such notices. This could point to a difference in DMCA philosophy. But it may also indicate that Bing's design leaves Microsoft in a slightly tighter position than Google. Bing's results page lets you open a preview window for each result that shows you a sizable chuck of its content before you visit. The site claims that this window displayed direct links to infringing downloads.
"MS Bing goes a step further than Google by allowing users an immediate preview [of] deep linked content on the underlying website without actually opening the website link," the suit reads. "In the case of [Blue Destiny's] recordings , MS Bing provided an additional pop-up window that specifically identified each and every individual song title and the song order available at the link to the infringing website."
But the links are no longer there, thanks to those DMCA takedown notices. Which makes you wonder why Blue Destiny is suing Redmond in the first place. "I'm not sure how Microsoft could be liable if they expeditiously removed the links after receiving the copyright owner's notices," Goldman says.
Is there a case against RapidShare? The company is based in Europe, and it does not appear to accept DMCA takedowns. "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."
Microsoft declined to comment on the suit. And Google did not answer our request for comment. Par for the course, really. ®
Update: This story has been updated to make it clear that RapidShare is also named as a defendant in the suit.