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Pirate stomping by Google et Cie won't work, says expert

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Plans developed by search engines that would define how rights-holders engage with them over the removal of links to copyright infringing content seek to introduce new thresholds over notice and takedown standards that EU law does not require, an expert has said.

Google, Yahoo! and Microsoft have drawn up a series of "principles" to guide how rights-holders should act when issuing them with requests for the removal of infringing content from search indexes as well as the responsibilities to which search engines themselves should be required to conform.

The plans were published (4-page/43KB PDF) by digital rights campaign group the Open Rights Group (ORG) who obtained details of the proposals via a freedom of information (FOI) request to the government.

Under the plans, search engines would be required to provide a way for rights-holders to inform them that their rankings display links to pirate content. Search engines would have to quickly remove content on receipt of a valid takedown notice.

Rights-holders' takedown notices would have to be targeted in order to "specifically identify infringing content" and should only issue them to search engines "after assessing their impact on any non-infringing uses and concluding that the takedown would not have an adverse effect on such non-infringing uses", the search engines' plans propose.

However, technology law specialist Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said the latter requirement sets standards rights-holders would have to meet that are not currently required under EU law.

"The principles require that a rights-holder only issue a notice of infringement after making an assessment of its impact on non-infringing uses of content and 'concluding that the takedown notice would not have an adverse effect on such non-infringing uses'," he said. "This principle seeks to interpret the protection given to search engine providers against liability as greater than that which is provided for under European law.

"Once a right-holder has notified a search engine of an act of infringement, the onus is upon the search engine to act expeditiously to remove or disable access to the offending information. A search engine need only become aware of 'facts or circumstances from which infringing conduct is apparent' to lose its immunity against liability as provided for in connection with the provisions of the E-Commerce Directive.

"It is irrelevant to the search engine's obligation to respond to the rights holder's notification, whether or not the takedown notice would have an impact on non-infringing uses," Scanlon said.

The E-Commerce Directive protects service providers from liability for material that they neither create nor monitor but simply store or pass on to users of their service. The directive says that service providers are generally not responsible for the activity of customers and that member states must not put service providers under any obligation to police illegal activity on its service.

This principle seeks to interpret the protection given to search engine providers against liability as greater than that which is provided for under European law. – expert

Service providers are not liable for infringement via their services if they do not have "actual knowledge" or an awareness of facts or circumstances from which an illegal activity is apparent, or having obtained such knowledge "acts expeditiously to remove or to disable access to the information". The Directive is implemented in the UK by the E-Commerce Regulations.

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