London High Court: Newzbin is not Google

Yesterday, the London High Court handed down the verdict in the case of Twentieth Century Fox, Universal, Warner Brothers, Paramount, Disney and Columbia Pictures versus Newzbin. The Court held that Usenet indexer Newzbin is liable for copyright infringement and ordered it to remove all links to the content of the claimants. The verdict is the next in a row of recent court victories for the entertainment industry that shed more light on the liability of information society service providers.

The main function of Newzbin is to index and organize content on Usenet, so in a sense it is a ‘search engine’ for Usenet. The Hollywood studios argued that Newzbin is a service focused on piracy because it “locates and categorises unlawful copies of movies and displays the titles of these copies in its indices; provides a facility for its users to search for particular unlawful copies and displays the results; and provides a simple one-click mechanism whereby users can acquire unlawful copies of their choice”. Newzbin on the other hand argued that it is merely a search engine like Google and that it is “content agnostic”. Newzbin stated that any illicit filetrading that takes place between users with the help of Newzbin is solely the responsibility of those users.

This ‘Google defence’ is oftentimes heard when it comes to filesharing platforms, but as with the Pirate Bay and Mininova, it is once again unsuccessful. Why is this?

To avoid liability, a filesharing platform must prove that it is not specifically geared towards illegal filesharing. Once a site starts influencing search results in such a way that users can easily find and access copyrighted content, the 'Google defence' falls flat.  Activities such as removing bad links, categorizing files (cams, screeners, DVD rip et cetera), providing meta data are all indications that the goal of a site is to facilitate copyright infringement. Furthermore, if the activity of the filesharing platform includes hosting activities (e.g. storing .torrent files, operating a forum or even having a moderated list of links) the law requires a platform to take necessary steps to avoid copyright infringement. For instance, it must operate a notice-and-takedown system so that once an infringing file has been brought to the attention of the filesharing platform (notice), it can be removed (takedown). In the Newzbin case Justice Kitchin made it very clear that the above-mentioned criteria were not met and that he felt that any attempts to protect the rights of the copyright holders were “merely cosmetic” (see paragraphs 42 and 43 of the judgement).

Up until now, most of the filesharing platforms that have been taken to court have lost their cases for not adhering to the rules set above. Why do these filesharing platforms not avoid the threat of litigation against them by acting more like Google?

There is a simple reason for this: it will make their platform less attractive for users and therefore less lucrative. As can be seen in the collapse of Mininova, users are predominantly interested in easily finding copyrighted content. Any filesharing platform that is not aimed at finding this content and/or operates a decent copyright protection scheme will lose most of its users, because there will be too little content, or the content is contaminated (bad files, viruses). So, filesharing platforms actively facilitate copyright infringement because it attracts users. The easier it is to find copyrighted material, the more people use the service, and the more people that use the service, the more money flows in. The turnover of Newzbin and Mininova exceeded 1 million euros per year. The Pirate Bay has an estimated annual turnover of several million euros based on online advertising. During the proceedings it became clear that Newzbin’s three former owners Chris Elsworth (Caesium), Thomas Hurst (Freaky) and Lee Skillen (Kalante) raked in around 500,000 euros in profit per year.

The Newzbin verdict will likely lead to a public outcry among filesharers. They will probably argue that this verdict sets a precedent and that ‘Google will be next’. Furthermore, it is likely that they will call this verdict ‘a threat to the Usenet’. Both claims are totally unsubstantiated. As I have argued before on this blog, it is unlikely that the entertainment industry will take on Google Search, for the simple reason that Google does not operate in the same fashion as the ‘search engines’ of the Pirate Bay, Mininova and Newzbin.The claim that the Newzbin verdict is a threat to Usenet is also without merit. The Newzbin verdict has no impact on Usenet whatsoever. Usenet is not affected by this verdict, it will just become harder for users to easily find copyrighted material on Usenet.

That is until the next ‘search engine’ comes along and tries its luck…