Creating a safe harbour for online surfing

WIRED:European search engine start-ups face a quandary: is linking to infringing material in itself illegal?

YOU DON'T hear much about police barrelling into Google and demanding that it shut down its search engine.

Stranger things could happen though. In the UK, anti-piracy group UK-Fact arranged for a raid on website SurfTheChannel on the grounds that it was being used to access infringing material.

SurfTheChannel is, like Google, a search engine: it points to the content of other websites but does not host the content itself.

In the end, the criminal charge was dropped, although UK-Fact is continuing to pursue a civil case against the owners of SurfTheChannel.

However, its case struggles with the same problem that anyone pursuing a search engine must fight and that every search engine must fear: is linking to infringing (or illegal) material in itself illegal?

Here's the scenario. You type "torrent Star Trek movie" into the Pirate Bay and (I imagine) you'll get a list of links to files that, eventually, will allow you to download an infringing version of the latest Star Trek blockbuster.

For many people, including the judge in the recent Pirate Bay case, this showed that the Pirate Bay was a contributor to the infringement - and should therefore pay the price.

But type the same thing into Google and you will probably find the same infringing content.

So what's the difference? Should Google be thrown into jail along with the Pirate Bay founders and SurfTheChannel's service?

Any lawyer will tell you that the answer to this question takes you into murky waters, especially in Europe.

But "it depends" is hardly a business-friendly answer, especially as there is no obvious way to satisfy demands that search engines should not link to infringing content.

A decent search engine will index and identify billions of webpages, some of which are infringing and some of which are not.

Despite what rightsholders often insist, there is no way to tell whether content is infringing. Even rightsholders themselves frequently have no idea of the legal status of content.

To make a search engine liable for millions of links it has no way of policing would effectively kill any website that seeks to act as a complete guide to the internet.

Thankfully for big companies based in the US (and anyone trying to find their way around the internet), the situation is more settled there.

In the US, the law specifically carves out a protection against liability for "information location tools" - search engines, in other words.

It is the same sort of "safe harbour" that protects web hosting services from being sued over their customers' content and internet service providers and mobile phone companies from being penalised for making temporary caches of websites to cut down connection costs and speed up connections.

No such protection exists in Europe for search engines. However the very fact that these US search engine companies are so large and, moreover, have large subsidiaries in Europe and beyond, gives them a little more protection from midnight raids than start-ups like SurfTheChannel.

It also provides them with something of an economic advantage over any upstart European search engine.

When Bing, the new Microsoft search engine, was launched, only a few noted that its "video search" effectively embedded copyrighted content on to Microsoft's own website (try typing The Office into its video search and see what happens).

If that had been a European search engine launched by a plucky new start-up, you can bet that its lawyers would have warned them off such a

feature.

This effectively means that one of the biggest selling points of Microsoft's Google competitor is out of bounds for any European contender.

We could update the European law - the e-commerce directive - to match the US's exclusions for liability.

The problem though is that big media companies like music labels and (increasingly) the newspaper industry would like the pendulum to swing the other way.

They would like companies like Google to pay a licence for linking to available content and are willing to lobby for that to be made part of European law.

If rightsholder lobbyists get away with that, it would mean even more of a lockdown for the big US companies, as only Google and its corporate contemporaries have the billions to pay for licensing the rest of the internet.

European start-ups would somehow have to find the cash to pay for every link they provided - and in advance.

Getting venture capital, always difficult in the EU, would become impossible for "information location tool" vendors.

Perhaps the best solution would be for individual countries in the EU to make themselves more business friendly.

The e-commerce directive already allows individual nations to carve out wider exceptions than those listed.

Countries like Spain, Portugal and Austria have all included some protection to search engines, as well as anyone providing a weblink to another website.

Perhaps Ireland could create its own "safe harbour" in national law for new internet start-ups.

That way, we could draw investment from other countries who want the benefit of being able to find what we need on the internet but are scared to alienate the vested interests who would rather choke it.