TorrentSpy: MPAA Might As Well Sue Google

TorrentSpy, a BitTorrent search engine, was one of six torrent sites sued (read the complaint here) by the MPAA in February for copyright infringement for directing users to websites that host copyrighted content available for download. TorrentSpy filed its motion to dismiss last week, in which it suggested that the MPAA would just be better off suing Google:

There is nothing alleged to distinguish defendants' website from that maintained by Google... Everything alleged about defendants' website is true about Google, and even more so, because Google outperforms the allegations in the complaint.

In fact, the difference between Google and a site like TorrentSpy might just come down to marketing: Google simply sounds friendlier than TorrentSpy and doesn't help people download music or movies for free, thus, it can't be the same kind of nefarious web entity. Right?

Almost. Websites such as TorrentSpy operate a lot like Google in that they don't actually generate or host any content, they merely organize the info out there to make it searchable, providing links to requested information depending on user requests (you can even find the torrent files available through TorrentSpy in Google by typing the search string "filetype:torrent"). According to Wired:

Torrentspy is a search engine that helps people find torrents on the web. It crawls dozens of third-party trackers to see which torrents they are serving. Then, when you run a search, your results are made up of the hits that your search returned from those outside trackers. TorrentSpy doesn't host any torrents on its servers, but only points its users to torrents hosted elsewhere that they can download and use. It's a bit of a loophole, and the MPAA is actively trying to close that loophole.

A bit of a loophole is right, but it can also be said that this is exactly the kind of site (or behavior) the Supreme Court was trying to preserve as legitimate in the Grokster case. Everyone can essentially agree that search is a good thing when it comes to organizing all the stuff on the Internet, and at a certain point responsibility for infringing material online is going to have to lie in the providers of that content and not the engines that merely locate it.

The EFF predicts that this case will be the point where the world of copyright law collides with the world of search:

The complaint gives little guidance about what the studios think separates TorrentSpy from any other index. It alleges that "the predominant use" of the index is for infringement (shades of MGM v. Grokster!). It claims that "indexing files according to specific titles of copyrighted television programs" is evidence of inducement. It argues that TorrentSpy "favorably compare[s] its website to other peer-to-peer services widely used for infringing activities." I'm sure the plaintiffs will further develop their "TorrentSpy is different" themes as the case goes forward.

But that's the important question raised by the TorrentSpy lawsuit: what's the difference between a "good" index and a "bad" index, and is that a distinction that copyright law can effectively make? In 1998, when Congress passed the DMCA's "safe harbor" provisions, it seemed to be saying that indexes should be shielded from copyright claims, so long as they implemented a "notice-and-takedown" procedure. The TorrentSpy suit (as well as the MP3Board.com lawsuit) suggests that the entertainment industry wants to renegotiate that bargain in court. The result could have important implications not just for torrent indexes, but for all online index and search services.

And CNet refers to an EFF attorney:

Electronic Frontier Foundation attorney Fred von Lohmann said that the courts had not yet ruled on whether search tools could be held liable for copy infringement.

Most relevant cases, such as record labels' suit against MP3Board several years ago, have been settled before the issue has come to trial, he said. "We haven't had a case that really tests the case of whether providing an indexing service by itself an infringement," von Lohmann said.

And here is where the sticky issue with this case. A detailed analysis of a fair use defense could hypothetically come out differently for Google than for TorrentSpy, namely a major difference in the nature of the use and impact on the potential market. Also, Google might qualify for the safe harbors under Section 512 of the DMCA while TorrentSpy might not (wouldn't the knowledge threshold be a lot lower for TorrentSpy than Google?), based primarily on how the two sites position themselves and their corporate image (even though the technology is very similar).

There are decisions on filesharing. There are decision for internet search. Now it looks like there will be a decision on searching for shared files.

Sources:
MPAA Lawsuit
TorrentSpy's Motion to Dismiss
CNet: MPAA Sues Newsgroup, P2P search sites
Rothkin Law Firm (TorrentSpy's Lawyers and probably a good place to go for updates)
Macworld: Sue Google, Not Us, TorrentSpy Tells Hollywood
Softpedia: MPAA Wants to Ban the .torrent Format
Wired: MPAA Versus TorrentSpy
EFF: Copyright v. Indexing
BBC: BitTorrent Search Site Hits Back
Techdirt: TorrentSpy Says MPAA Can't Reinterpret The Supreme Court on Filesharing
MGM v. Grokster, and analysis by EFF