Alleged Hosting of Hacked Celebrity Photos Said Unlikely to Produce Successful Lawsuit Against Google

Hackers gained unauthorized access to multiple celebrities’ iCloud accounts and posted photos online last month (WID Sept 3 p12). Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., and Sen. Claire McCaskill, D-Mo., asked Apple for a briefing on the attacks (http://1.usa.gov/1nOjfGt). The senators also requested security information on Apple’s “new cloud storage initiative, iCloud Drive.” Apple said it was “outraged” when it learned Apple accounts were involved in the hacks (http://bit.ly/1lx3sA6). The FBI said it’s investigating the attack.

Google has displayed “despicable, reprehensible conduct in not only failing to act expeditiously and responsibly to remove the Images, but in knowingly accommodating, facilitating and perpetuating the unlawful conduct,” said Singer in the letter. Lavely & Singer has been sending notice and takedown requests to several ISPs, including Google, since the photos appeared online, and the “vast majority” of the smaller ISPs have “complied,” it said. Google, however, has “recklessly allowed these blatant violations to continue,” it said. The DMCA’s safe harbor protections for ISPs only apply if the provider doesn’t have “actual knowledge that it is hosting infringing material,” it said. Google’s failure to remove the photos “expeditiously,” and in some cases, its “outright refusals,” exposes the company to “significant liability,” it said.

"We've removed tens of thousands of pictures -- within hours of the requests being made -- and we have closed hundreds of accounts,” said Google in a statement Thursday. “The Internet is used for many good things,” but “stealing people’s private photos is not one of them,” it said.

"Google may have a fair use argument, to the extent that the images in question have been the subject of discussion,” said Corynne McSherry, Electronic Frontier Foundation intellectual property director. “Unless the photos are selfies, the celebrity may not be the copyright owner,” she said. Google is obligated to remove only those links that have been “specifically identified,” said McSherry. The letter “seems to presume otherwise,” she said.

Singer’s letter is “posturing -- any copyright suit would be dead on arrival,” said Derek Bambauer, a University of Arizona law professor specializing in Internet law and intellectual property. While the letter is “emotional,” it doesn’t “grapple with the most important fact,” which is that Google has to have “specific knowledge” of infringing content, “not generalized knowledge,” he said. “If Google knows that an infringing photo is at a given URL, it has to remove the photo to stay within the safe harbor,” said Bambauer. But if the company has general knowledge that Google’s services are being used for infringement, then it’s protected under the DMCA’s safe harbor laws, he said. A lawsuit on this matter would be a “public relations ploy, not an effective legal strategy,” Bambauer said. “I hope Singer’s clients registered the allegedly infringing photos, which they would have to do before filing suit -- or perhaps they won’t bother, since this isn’t really a legal move, but rather a media one,” he said.

The “'knowledge’ requirement does not mean that a service provider, once it acts on one DMCA notice over material, has a generalized obligation to monitor its system for the same material posted elsewhere,” said John Bergmayer, senior staff attorney at Public Knowledge. Such providers can’t “solicit infringing acts by third parties but neither do they have an affirmative obligation to filter or review what third parties post before,” he said. Bergmayer said he was “sympathetic” to those affected by the photos, but was “skeptical” that copyright law was appropriate avenue to address the issue.