Recently, the movie industry has sued several websites that provided well-organized sets of links to infringing copies or streams of movies or television shows hosted elsewhere on the web. In effect, the plaintiffs allege that these link sites were web-based versions of The Pirate Bay that used the draw of infringing content to sell advertisements. After reviewing the complaint in one of these cases, Disney Enterprises Inc. v. ShowStash.com, I think these link-site are potentially important for three reasons.

First, they reaffirm the wisdom of the Supreme Court’s Grokster decision. When debate in Grokster focused on the meaning of Sony, scholarly defenders of file-sharing argued, (see p. 4), that Grokster’s program provided an information-location service like that provided by a search engine like Google. Therefore, Grokster could not be held liable because it knew that its program was used to locate infringing content because Google would held liable under the same theory. Grokster’s inducement rule forecloses this sort of contrived inability to distinguish Google from Grokster—or ShowStash.com.

Second, while the Grokster inducement rule makes it seem likely that copyright holders will win the link-site cases, it does so for an important reason: The design, structure and focus of these sites are what strongly suggest that their creators intended to facilitate infringement. After Grokster, some still hope that—absent some public expression of intent to encourage piracy—courts will conclude that they cannot infer the intent of designers of devices or services from the structure of the devices or services that they design. The link-site cases should provide further proof that such efforts to narrowly interpret Grokster make no sense: The design of a complex product or service will always provide the best (and most direct) evidence of the intent of its designer. For example, in the Cooper case, an Australian court focused on the design of a similar link site when holding its operator liable for “authorizing” infringement.

Third, these cases will be particularly interesting if any of the sued link sites asserts a safe-harbor defense under 512(d). If so, these cases may be the first to address the important issue lurking in the Google/YouTube litigation: When do web-site operators forfeit safe-harbor protections because they knew or had reason to know of infringing activity?

For these reasons, the link-site cases are intriguing. It will also be interesting to see whether, as in Grokster, mainstream Internet and electronics companies conclude that they must intervene in defense of entities that look a lot like would-be Internet pirate kings. I suspect that they will not: Grokster was a useful reminder that when bad actors drive debates, they always drive them to the same place: Off a cliff.

posted by Thomas Sydnor @ 11:50 AM | DMCA, Enforcement & Remedies, Free Culture Movement, Internet: P2P, Search Engines...

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