July 12th A Good Day and a Bad Day for Google in France

Something was decidedly in the air last Thursday (July 12) in this Kat's native Canada and his adopted home of France.  On that day, the Supreme Court of Canada handed down five important rulings in copyright matters while the French Cour de cassation issued four noteworthy decisions in respect of online copyright infringement (all involving Google!).  There was good news and bad news for Google.

First, the good news:

In a series of three decisions involving the French safe-harbour provisions available to qualifying online service providers (such as hosting providers) the Cour de cassation clarified the law on notice and takedown procedures.  To date, appellate courts have generally required an online service provider who has been duly notified of the presence of infringing content on its service not only to take it down (expeditiously) but also to ensure that it remains down without the need for any further notification and even if the content may have been re-posted at a different address (so-called takedown and stay down).  This approach has now been rejected by the Cour de cassation, which held that to impose such an obligation is tantamount to imposing a general monitoring obligation, which is contrary to applicable law.  (Two of these decisions also addressed an interesting issue relating to whether Google Video's method a showing the video from a third-party website was actually an infringement of the public performace right; I hope to come back to this in another post.)

Then, the bad news:

In another ruling dated the same day, the Court gave its first decision on Section L.336-2 of the Intellectual Property Code, which allows a court to order third parties to take measures to assist in preventing online copyright (and neighbouring right) infringement.  A body representing record companies (SNEP) took action against Google on the basis of this provision, seeking an injuction requiring Google to alter its Google Suggest tool, which, SNEP claimed (and adduced evidence in support of) had a tendency to complete searches of artist names, song titles and album titles with terms such as "torrent", "megaupload" and "rapidshare".

The appellate court had dismissed the action, holding that the functionality at issue was not itself an infringement of any copyright or neighbouring right such that one of the requirements of Section L.336-2 IPC was not satisfied.

The Cour de cassation reversed, holding that the Google site systematically directed users towards infringing sites such that the Google site could be said to be providing the means to infringe copyright/neighbouring right and that the measures sought were intended to prevent such infringement by eliminating the automatic association of certain words with search requests, which could indeed contribute to making it more difficult to find the infringing sites (even if it is not 100% effective).

The matter was thus remanded to the Versailles Court of Appeals.

Links to rulings here:
SNEP decision
Safe harbour decisions