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France: Cour de Cassation Decision on Google

(Aug. 1, 2012) On July 12, 2012, the Cour de Cassation, France's Supreme Court for civil and criminal matters, ruled that a search engine that systematically sends users, by automatically suggesting key words associated with their queries, to websites containing music files made available to the public without the consent of the files' authors should be considered as providing the means to infringe copyright and related rights. As a result, measures to prevent or terminate such infringements by stopping the automatic association of key words with terms contained in the queries are justified, even if the measures are not totally effective. (Cour de Cassation Arrêt n° 832 du 12 juillet 2012 (11-20.358) – Première chambre civile [in French], Cour de Cassation website, The Cour de Cassation grounded its decision on articles L.335-4 and L. 336-2 of the Intellectual Property Code. It referred the case back to the Court of Appeal of Versailles to be re-adjudicated in conformity with its findings. (Id.)

The decision relates to “Google Suggest.” In 2010, the Syndicat National de l'Edition Phonographique (SNEP), which represents most of the French recording industry, sued Google for automatically suggesting the file-hosting sites “Torrent,” “Megaupload,” or “Rapidshare” when users typed in the names of artists or bands in the Google search bar. Both the Court of First Instance and the Court of Appeal of Paris rejected SNEP's demand that Google stop suggesting these sites. The courts found that the sites were not illegal in themselves, even though they could be used to infringe copyright.

The Court of Appeal stated that the downloading of a file necessitates an act of will of the Internet user, acts for which Google cannot be held liable. As a result, the Court held, SNEP's copyrights were not infringed upon by Google's Suggest service, and the company could not be held liable for such potentially infringing uses, nor be forced to stop its automatic suggestions. (CA Paris, Pôle 1, 3ème ch., 3 mai 2011, n° 10/19845, Syndicat National de l'Edition Phonographique (SNEP) agissant c/SARL Google France, Lexbase online legal database, No. A5148HWL (by subscription).)