Indexing Infringing Content: Is it Ever (il)Legal?

Swedish police today raided several sites where servers suspected of being used in file-sharing were located, seizing several computers, including one allegedly belonging to a pro-piracy advocacy organization, and arresting three people in their 20s. (A page summarizing the raid is now posted at the target site’s URL, piratebay.org.)

Pirate Bay claimed to be the world’s largest BitTorrent tracker site, and the Swedish raid recalls the recent MPAA lawsuits against BitTorrent tracker sites in the U.S. (one of which, Torrentspy, recently responded with a countersuit against the MPAA).

People who don’t follow the issue regularly might be forgiven for thinking: hasn’t this all been settled? Didn’t the Supreme Court outlaw file-sharing in last year’s Grokster decision?

Well, no, not really. And the questions left open by Grokster are what make the new round of content-industry lawsuits against tracker sites so interesting. If the content providers win, the frontiers of secondary liability doctrine may again be pushed back, much the way (as Professor Fisher has argued, persuasively in my view) the original Napster file-sharing decision expanded the sphere of secondary liability into areas previously believed to be protected under the fair use doctrine.

What the Grokster decision most clearly prohibited (as I’ve suggested elsewhere) is not file-sharing per se, but rather certain types of marketing and promotional statements made to lure users to P2P systems with the promise of infringing content. Operating a peer-to-peer system like Grokster’s isn’t enough, standing alone, to get you in legal trouble (so long as you’re careful, as Grokster itself arguably was, to avoid committing contributory or vicarious copyright infringement). What will get you in trouble under the Grokster framework, in contrast, is a certain type of hucksterism — the making of suggestions to would-be users that they really ought to visit your site because of all the cool infringing material they’ll be able to find there (particularly if you derive profit from the number of visitors, as Grokster did).

Do the BitTorrent tracker sites do this? If we visit the directory pages of Torrentspy (which is a defendant in the new round of lawsuits) and Yotoshi (which isn’t — warning, there’s a non-worksafe banner ad on the Yotoshi page at the time I write this), you will certainly see links to lots of purportedly infringing material. But what you won’t see, at those sites at least, is the type of carnival-barker advertising (“get your infringing content here!”) most clearly forbidden under Grokster. The indexes are compact, text-only, purely factual — boring, even. Is the mere fact that infringing content is indexed alongside noninfringing content enough to get the indexer in trouble under currently existing secondary liability rules?

If I go down to the library, pull current books off the shelves, and cart home boxes filled with photocopies of those books, I’ve clearly infringed the authors’ copyrights. If you come along and make a list of what’s in my boxes, have you done the same? Although some might disagree, I’d say, clearly not. Merely compiling a list of someone else’s infringing content isn’t itself an infringing act, because nothing in Section 106 gives copyright holders the exclusive right to create indexes, lists, or other descriptive materials enumerating their works. So long as the cataloger doesn’t take the additional step of duplicating the works being cataloged, or otherwise doing one of the actions Section 106 reserves exclusively to the copyright holder, the statute provides no basis for imposing liability.

(As an aside, this is the same reason why I think cases like BMG v. Gonzalez can’t possibly be correct — assuming for the sake of argument that the Gonzalez court is correct that there is a market for introducing consumers to copyrighted works, nothing in the Copyright Act gives the copyright holder any exclusive rights over that market, as distinct from the market for the work itself.)

If the creation of an index of infringing materials isn’t itself infringing, though, might it still be punishable under theories of contributory or vicarious liability, or under a Grokster-style inducement theory? Here, too, it looks to me at least like the courts will have to expand existing secondary liability doctrine to rule against the tracker sites under these theories. The tracking sites’ inability to control the actions of the sites that actually host the infringing copies negates a key element of the vicarious liability theory, and it seems like a stretch to argue that merely hyperlinking to an infringing site is tantamount to providing a “site and facility” for infringement under contributory liability.

Which means it may all come down to Grokster and the inducement approach. Assuming for the moment that the tracker site operators really are agnostic about whether the tracked content infringes or not (and the fact that public-domain works, copies of Linux, and so forth, are listed right alongside the latest Star Wars bootlegs certainly provides some visual evidence of this), is operating a site that merely links to some infringing content enough for liability under Grokster’s inducement theory? It would stretch Grokster quite a bit to so hold, in my opinion, but Grokster itself was a similar stretch of sorts, and it’s hard to guess where the courts ultimately will come to rest.

3 Responses to “Indexing Infringing Content: Is it Ever (il)Legal?”

  1. Part of this reminds me of the case (MPAA v. 2600) where Eric Corely was enjoined from linking to DeCSS code. I would also further your argument by suggesting that listing “Top 10″ torrents is not inducing others to download infringing material (even if the top 10 happen to contain just that) because the site does not have control over what torrents will be popular.

  2. This article lists three cases where sites have been forced to takedown infringing links.

    The article is pretty extensive. There has been one case with Google vs. Perfect 10 which went the other way.

  3. [...] In the spirit of living up to my own principles, I made a couple of very minor contributions to the world of open access primary legal source materials in the fall. The process of preparing the handout for my fall IP survey course left me with electronic versions of several recent cases that I wanted to cover in class, so I picked a couple of them and put them online at Wikisource. Here they are: BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (a case I’ve briefly mentioned on this blog a couple of times); and Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004) (which I’ve blogged about here and here). I wrote up a short summary of the Gonzalez case for Wikipedia, and minimally edited this already very thorough entry on the Lexmark decision. [...]