[x-pubpol] France: Google can be ordered to filter words linking to online piracy websites

[Joly MacFie]

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France: Google can be ordered to filter words linking to online piracy
websites<http://feedproxy.google.com/~r/KluwerCopyrightBlogFull/~3/ogS0KZmDbEw/?utm_source=feedburner&utm_medium=email>

Posted: 02 Sep 2012 12:19 AM PDT
 *by Catherine Jasserand *

Institute for Information Law (IViR) <http://www.ivir.nl/about.html>

*‘ <http://kluwercopyrightblog.com/files/2011/12/jasserand.gif>According to
the Supreme Court, through its service of Google Suggest, Google had not
infringed any copyright but had provided the means to infringe copyright.’*

In 2010 Google was sued by the French recording industry trade association
(SNEP) for copyright and neighbouring right infringements via its service
Google Suggest. The Court of First Instance and the Court of Appeal both
rejected<http://kluwercopyrightblog.com/2011/05/13/google-suggest-no-copyright-liability-for-suggesting-words-like-torrent-megaupload-and-rapidshare/>the
claims. They found that Google had not infringed any copyright by
suggesting websites to Internet users when they were typing their requests.
Only the use of the files available on the suggested websites could have
been infringing. The plaintiff had originally requested the Court of First
Instance to issue an order against Google to stop and prevent further
copyright infringements by filtering key words such as « Torrent », «
Megaupload » and « Rapidshare ». On 12 July 2012, the Court of Cassation
overruled<http://www.courdecassation.fr/jurisprudence_2/premiere_chambre_civile_568/832_12_23884.html>the
decision of the Court of Appeal and sent back the case to a different
Court of Appeal (Versailles) to issue a new judgment in conformity with its
ruling.

The Court of Cassation grounded its decision on Articles L.
335-4<http://www.legifrance.com/affichCodeArticle.do;jsessionid=EA2C8B550F806749D9640B7D2A2A4691.tpdjo15v_1?idArticle=LEGIARTI000006279182&cidTexte=LEGITEXT000006069414&dateTexte=20120831>
 and
L. 336-2<http://www.legifrance.com/affichCodeArticle.do;jsessionid=EA2C8B550F806749D9640B7D2A2A4691.tpdjo15v_1?idArticle=LEGIARTI000020740350&cidTexte=LEGITEXT000006069414&dateTexte=20120831>
of
the French Intellectual Property Code (IPC). The first article defines the
criminal offence of copyright infringement and the applicable penalties;
the second article provides copyright holders with the possibility to
request an injunction from the Court of First Instance to stop or prevent
any copyright infringement. The injunction can be addressed against anyone
(person, entity) likely to contribute to remedy it. The Court of Cassation
considered that the Court of Appeal had not properly applied the provisions
to the case. According to the Supreme Court, through its service of Google
Suggest, Google had not infringed any copyright but had provided the means
to infringe copyright. The Court also considered that the injunction was
intended to avoid or put an end to the infringements by deletion of the
automatic association of keywords with the words of a request. Google was
able to contribute to solve the issue by making it more difficult for
Internet users to find infringing websites.

The ruling of the Court stands in the last paragraph of the decision: it is
concise but rather surprising. The Court first assesses the involvement of
Google regarding copyright infringements: logically and as the Court of
Appeal had already established it, Google did not infringe copyright.
However the Court of Cassation goes a step further in its reasoning and
states that Google was offering the means to infringe copyright (implying
that Google was facilitating copyright infringement). It is hard to
understand how the Court of Cassation can base its ruling on Article L.
335-4 of the IPC. That article only covers cases of copyright infringement
and not other situations such as the provisions of means that can be used
to commit copyright infringement. The Court of Cassation then considers
that the request of injunction against Google was justified since Google
was able to contribute to stop or prevent the infringements by filtering
litigious words. The Court adds that the system of filtering does not need
to be completely efficient! It is worthwhile to remind here (and again)
that Article L. 336-5 has been highly
criticized<http://www.pcinpact.com/news/49303-hadopi-christine-albanel-assemblee-nationale.htm>
for
being too imprecise. The provision is not only badly written (what does the
expression  “someone likely to contribute to remedy” mean?) but also
potentially dangerous (because of its large spectrum). Last but not least,
since the Court of Cassation
recognized<http://kluwercopyrightblog.com/2012/08/14/france-the-court-of-cassation-puts-an-end-to-the-notice-and-stay-down-rule>on
the same day that online providers could not be subject to a general
obligation of monitoring (and thus filtering) on the basis of the law
implementing the e-commerce Directive, there is a risk that copyright
holders will try to obtain broad filtering orders on the ground of
copyright infringement.

In any event, it will be interesting to see which consequences the
Versailles Court of Appeal will draw from the Court of Cassation’s ruling
and especially whether the judges will sentence Google for the provision of
means to infringe copyright on the basis of Article L. 335-4 and if so,
which reasoning they will follow…




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