France: Google may have to censor for piracy after all

France’s Supreme Court has set aside a critical piracy ruling that could result in Google being forced to censor some of its search results.

The case centers on the search engine’s autocomplete feature — the suggestions for commonly-used search terms which pop up when you start typing in something on Google. While they are generally seen as a way to make search more efficient, or provide some amusement when the results behave strangely, not everyone is amused: in fact the French music royalties society SNEP has been campaigning for several years to force Google to stop associating musical terms with terms like “torrent” or the names of filesharing services like RapidShare or MegaUpload.

The group argued that Google was promoting piracy by associating the two terms in public, and making it easier for users to infringe copyright of the artists it represents.

But the French courts disagreed, rejecting those claims in 2010 and suggesting that making commonly-used search terms transparent was not the same as encouraging unauthorized copying. When SNEP appealed in 2011 and failed again, it looked like the case was over.

Now, however, the Court de Cassation, France’s court of last resort, has said it will set aside the verdict because of a technicality.

In a ruling made on Thursday, the Supreme Court said that the Court of Appeal had actually violated a key clause of the country’s rules on intellectual property in its interpretation of the legal arguments.

The rule states that collection societies like SNEP are within their rights to demand that the court take “all measures to prevent or stop such an attack on a copyright or related rights.” This, said the Supreme Court, was something ignored by the previous ruling: it has now referred the case back to the lower circuit, specifically the Court of Appeal in Versailles, for another go-round.

CASSE ET ANNULE, dans toutes ses dispositions, l’arrêt rendu le 3 mai 2011, entre les parties, par la cour d’appel de Paris ; remet, en conséquence, la cause et les parties dans l’état où elles se trouvaient avant ledit arrêt et, pour être fait droit, les renvoie devant la cour d’appel de Versailles

Although the decision is not really a victory for anyone yet, it does open the door for a different decision. As such, it was welcomed by SNEP, whose CEO David El Sayegh said “this decision showing that search engines should be responsible for regulating the internet is a first in France”. Google France, meanwhile, reiterated its argument by saying that while it “takes very seriously” online infringement, autosuggest is simply an automatic display reflecting the searches completed by other internet users.

But here’s what’s even more peculiar: even though SNEP’s case failed in the court it actually had the desired impact in the real world: Google did start filtering some phrases voluntarily after the initial appeal, despite the fact that it had won.

As The Register reported some 18 months ago:

The company said in December that it would play nice with the big name record labels, TV networks, and movie studios, by providing better protection against piracy on the interwebs.

Accordingly, various search terms and file-sharing websites have now been erased from Google’s not-altogether spotless mind.

That means SNEP appears to be trying to make sure that this approach is not merely voluntary, but covers all sorts of copyright material and enshrined in law. That would put it in accordance with some other censorship activity in France, such as the rules that force internet companies to censor pro-Nazi material, for example.

And it also adds to the complicated situation around France’s three strikes law known as Hadopi, which has been in force since 2010 but has had questionable impact on filesharing. New president Francois Hollande has already suggested that he’s considering overturning the law.

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