REDMOND, Wash. — Microsoft has launched its new Bing search engine and disabling the safe mode will bring plenty of porn results in images and videos.
As noted by TechCrunch, once the safe content filter is manually eliminated in a checkbox, it's very easy to search for "porn" or for a porn star by name. Under videos, this brings numerous results, many of them linked to different tube sites with active links to those sites. And if one moves a mouse over the clip, it plays.
Other sites, such as PC World, have made the same discovery, and observed that Bing's video previews are just like Microsoft's Live Search, also commenting that the clips can be played on the actual search page.
This raises a number of questions regarding the legality of the presented search results. It appears as though Microsoft's Bing is hosting the clips. In the past, companies such as Perfect 10 have sued Google for providing access to their copyrighted images. Google won the case, claiming DMCA protection, also asserting it wasn't hosting the images, only providing access through a search.
But if Microsoft is indeed hosting the videos -- the company could not be reached for comment -- it may well be a different legal matter.
"This is a very interesting scenario," said Detroit-based adult business attorney Corey D. Silverstein.
"DMCA Title II creates a safe harbor for online service providers against copyright liability if the service providers adhere to and qualify for certain safe harbor guidelines and promptly block access to allegedly infringing material, if the service provider receives notification claiming infringement from a copyright holder or the copyright holder’s agent," Silverstein explained to AVN.com. "If Microsoft itself is hosting content protected by an entity’s or individual’s copyright, then the protections granted by the DMCA could arguably not apply to Microsoft and Microsoft could be potentially exposed to damages for copyright infringement."
Silverstein said it would not be the first time that a large company such as Microsoft has made a mistake that opened the door for potential liability.
"However, I doubt that Microsoft and its hundreds of in-house and outside attorneys would have made such a dramatic mistake; but it’s not impossible and in this case it looks more probable than not that some issues have gone overlooked," Silverstein said.
"Additionally, after inspecting the site itself and consulting with MojoHost, President Brad Mitchell and MojoHost Technician Gregory Martin, it appears that Microsoft is hosting this content to some degree,"
Silverstein told AVN.com. "Brad Mitchell’s first words were 'wow' upon reviewing the site. Brad was quick to point out that not only does Microsoft appear to be hosting the content to some degree but other essential requirements for publishing adult content have clearly not been met."
Veteran adult attorney, Chicago's JD Obenberger, offered a somewhat different view.
"Obviously, there is a difference between hosting and providing indexation service and the courts have found no cognizable harm with mere indexation," Obengerger told AVN.com. "Distributing copyrighted content is infringement and it can be actionable even when the infringement is transitory, as in caching. That being said, ‘Fair Use’ is a constitutionally necessary defense to infringement. When I received your e-mail, I used Bing to search for an old porn star of the seventies, Tawny Pearl, who I remember happily. I got five pages of 20-second videos, none of which had anything to do with Tawny Pearl, including 'Nazi Sexperiments.' I'm not sure if the original content indexed is just a 20-25-second clip or whether Bing limits itself to that duration. If that's intentional, it looks like the limitation is to give it a ‘Plan B’ defense of fair use if indexation doesn't work."
So with the clips viewable on a search page being so short, Obenberger suggests there would be no case in court.
"My best guess is that an arguable indexation with a duration limit of about 20 seconds will succeed in the courts as defensible," he said.
"That kind of limitation in time, if it is real and not just a coincidence in my search, provides much more value to producers in marketing than harm, and is unlikely to cause any loss of sales at all."
Still, Obenberger did offer an instructive anecdote.
"There is a famous copyright infringement case involving a guy who performed at circuses being launched from cannon. His whole act ran about 20 seconds and when a local TV crew filmed it and put it on the news, they lost the infringement case because Fair Use only works if a reasonable portion of the work is excerpted and published by the alleged infringer," Obenberger said. "Assuming only trailers have a 20-second duration in porn, it's hard to see a good case for infringement."
Meanwhile, Silverstein also sees another big issue in addition to copyright infringement exposure -- the site is not complying with 18 USC 2257.
"In fact, it doesn’t appear that the site has complied with some of the most basic 2257 requirements," he said. "To Microsoft’s credit, the site does appear to have legal and terms of use sections that do reference copyright issues however I have not had the opportunity to read those terms in any detail."
Silverstein said the bottom line is that from a first glance, there may be some exposure issues for Microsoft and if the company doesn't resolve those issues in the near future, it may well be looking at a lawsuit or two, though as Obenberger suggests, it may be several defense options.
"Another concern is the public perception when word gets out to the mainstream media," Silverstein added. "With very simple search terms on Bing.com and clicking on fast age verification -- without having to enter a birth date -- I was able to view numerous different clips displaying in many cases sexual depictions that may qualify as obscene materials."
