Google’s Blind Side: The Smartest Guys in the Room Can’t Handle the Truth pt. 2


There is an excellent opinion piece in Forbes by Ronald Cass, former dean of the Boston University law school. In Google’s Blind Side, he makes many good points about the unacknowledged liability exposure that Google has to the many copyright infringement cases pending against the company, and makes an overarching point that cuts against the Veoh case.

He also gives a very well-articulated explanation of why the Electronic Frontier Foundation’s interpretation of the DMCA (and that of many other Google apologists) is entirely wrong as a matter of law.

“EFF wants to expand the [DMCA safe] harbor for providers by requiring direct notice of each individual posting of copyrighted work (followed by a decision not to act), reasoning that “take down” incentives under DMCA are enough. This rewrites the law, which recognizes that providers often are in much better position than copyright owners to find violations. There’s too much material for an individual right holder to screen, too many “private” sections of sites that copyright holders can’t see (though providers can) and more efficient alternatives for reducing the amount of pirated material on sites that reward piracy. Unlike EFF, Congress refused to insulate the more efficient screener who has reason to suspect piracy and is the one making money off it.” [emphasis MTP]

It is absurd to think that the Congress intended to offer the safe harbor to those who were able to litigate their liability to a final, non-appealable judgement on a packet-by-packet basis. If the EFF’s interpretation of the law obtained, the DMCA would essentially be granting a compulsory license that was paid for only to those who could afford to litigate. The Google-opoply interpretation of the DMCA safe harbor creates three classes of rights owners–those who can afford to send the notice and sue, those who can’t afford to send the notices or sue, and those who have given up in dispair. (See Jim deLong’s excellent piece Google the Destroyer.) And this is exactly the situation Google wants. For as EFF litigation mastermind Fred von Lohman said to me, “artists will just have to learn to get along on less money.”

As we have said on MTP many times, Google has some serious exposure in the Viacom case and the often overlooked class action case which includes many plaintiffs who in theory could individually be entitled to damages equal to Viacom (such as the Premier League and the NMPA). A billion here and a billion there, and pretty soon you’re talking about real money, even for Google.

And that’s just YouTube. This, combined with the litigation (perhaps brought by the United States, France, Germany or New Zealand for starters) that is inevitably going to arise out of the stunningly ill-advised Google Books debacle, is enough to put a significant dent in Google’s stock price.

And remember–the Google founders went way, way out of their way on the very edges of corporate law in the go-go years of the Dot Bomb boom to make sure that they and only they would have ultimate control of Google. (Does anyone doubt that the SEC would probably never allow another Google-type IPO in the current environment?) With control comes responsibility–and liability. And it all points back guess where? The smartest guys in the room.

There may be some companies that are “too big to fail,” in the popular mantra, but Google is not one of them. Neither are the artists who they are systematically destroying.

None of this should come as a surprise given the long, long line of cases where Google apolotists Lessig, Nesson, the EFF et al have done a brilliant job of making the losing argument.

Judgment will out.

See also: Artist Rights Are Human Rights

See also: How Many DMCA Notices Are Too Many?

See also: Veoh: Is Continuous Monitoring Really the Law?

See also: Lessig’s Bad Advice Redux

See also: Google to EMI: Stop Me Before I Infringe Again!

See also: “An End Run Around Copyright As We Know It”: U.S. Register of Copyright Marybeth Peters on Google Books