Israel’s Attorney General Takes Precedent-Setting Stance Against Google

Israel’s Attorney General has filed her position with the Tel Aviv District Court in support of a motion to order Google to actively block websites that are infringing copyrights and enabling viewing of pirated content for free.

The Legal Proceedings

Several Israeli content providers, including United King Films, Yes, Hot, and Charlton, as well as Zira, an organization that enforces copyrights on the Internet and fights copyright infringements committed through pirated downloads, filed the lawsuit against Google with the Tel Aviv District Court. The plaintiffs sought to compel the search giant to block access to websites that distribute pirated content by blocking them in its free domain name system (DNS) service. The DNS service enables users to connect to websites by translating domain names into the IP addresses of websites and servers around the world, including, inter alia, pirated websites.

The plaintiffs are basing their lawsuit on Section 53A of the Copyright Law, which empowers Israeli courts to order internet access providers (IAPs) to block and restrict access to copyright-infringing websites. Section 53A defines “access provider” as a service provider of access to an electronic communication network.

Google argued that public DNS providers are under no obligation to obtain a license pursuant to the Israeli Communications Law and that DNS providers do not fall under the definition of IAP, due to the fact they do not provide access to the Internet (which is provided by internet infrastructure providers and ISPs). The plaintiffs countered that the term “IAP” in the Copyright Law also includes public DNS providers.

Attorney General’s Position

As a result of this legal dispute, the court asked the Attorney General address various legal questions, including whether public DNS providers fall under the definition of IAPs pursuant to the Copyright Law. In her precedent-setting position statement, the Attorney General concurred with the plaintiffs’ claims, and stated that the legislator’s intention was not to prescribe a technical, rigid framework, but rather a substantive framework to be interpreted broadly and with flexibility to adapt itself to the needs of the time and place, in order to effectively block the distribution of pirated content. Nevertheless, the Attorney General qualified her position by adding that the territorial application of the order, if issued by the court, should be restricted to the State of Israel. Google is already blocking access to infringing websites in various countries, including France and Italy, which indicates the court order is technically feasible.

If the court accepts this position and awards in favor of the plaintiffs, Google will have to prevent users from accessing websites that distribute pirated content. For example, if a user uses Google to search for websites offering pirated content, Google must block users’ access to such websites and prevent them from viewing pirated content. Since most users do not know how to access piracy websites directly, such blocking is likely to be effective.

Repercussions

If the court decides to issue the requested order, it will be a game changer in terms of access platforms’ liability for piracy of copyrighted content. Such a decision will constitute a direct continuation of the trend that began in the late 1990s of expanding the scope of liability imposed on platforms, which is becoming more and more vigorous. This trend is clearly reflected in both legislation and court rulings.

This trend is supported, inter alia, by the doctrines of “contributory infringement” and “vicarious infringement” that have been applied to file-sharing platforms, even though the platform operators themselves have not been found directly liable for copyright infringement, but rather vicariously liable, as those who facilitated the infringement. Due to the practical difficulty of prosecuting and imposing liability on the direct copyright infringers, these doctrines enable the courts to prosecute the facilitators of copyright infringement to prevent piracy. The doctrines of contributory infringement and vicarious infringement can be applied to many diverse types of cases, particularly in relation to online activities.

Accordingly, if the court accepts the plaintiffs’ and Attorney General’s position, access platforms, such as Google, will no longer be able to claim they have no control over content or information that passes through their platforms. Thus, they will have to not only monitor their platforms, but also proactively block users’ access to piracy websites. A court order will compel content platforms, such as YouTube, to take action to prevent piracy, rather than make do with the more passive mechanism they currently use, known as “notice and takedown,” whereby copyright owners who discover that copyright-infringing content has been uploaded to a host platform may contact the platform and demand its removal.

It is also important to note that some of the plaintiffs in this lawsuit, along with other plaintiffs, filed another lawsuit against Meta (the owner of Facebook and WhatsApp) on similar grounds, alleging that Meta is vicariously liable for enabling users to distribute copyright-infringing content and is not doing enough to prevent such infringements.

Conclusions and Recommendations

These legal battles highlight the fact that we live in a world that no longer tolerates internet platforms, whether search engines, social networks, or online forums, shirking their legal liabilities. The operators of these platforms now need to internalize that they are and will be subject to constant attacks by copyright owners of content that passes through their platforms, and that they bear considerable legal obligations due to the nature of their activities.

Consequently, if the Israeli court finds in favor of the plaintiffs and issues a court order, platform operators must ensure they employ acceptable and reasonable means of monitoring and surveillance under the circumstances.

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Dr. Avishay Klein is a partner and heads the firm’s Privacy, Cybersecurity and Artificial Intelligence Department.

Dr. Ran Karmi is an associate in the firm’s Antitrust and Competition Department.

Barnea Jaffa Lande’s Privacy and Data Protection, Cybersecurity and Artificial Intelligence Department is one of the most prominent in Israel. It provides comprehensive and innovative legal advice to technology companies, institutional entities, and corporations from various sectors in Israel and abroad.