“One Bad Apple Don’t Spoil The Whole Cloud, Girl”: What do Google’s “new” anti-piracy policies really mean? Part 1

Just in time to distance itself from Operation Payback, Google recently posted what can only be described as a non-mea culpa mea culpa on its policy blog about its policies concerning promoting and financing massive copyright infringement.  I avoid using the word “change” regarding Google’s “new” policies only as carefully as Google did.  I can understand that a company currently engaged in copyright infringement litigation nearly as massive as the acts of infringement the company facilitates would be very careful about using the word “change”. 

A “change” in policy implies that you are doing something differently before the change than after.  There is then a date, a barrier, a demarcation line between what you did before and what you did after.  (Sort of like “bad old YouTube” that got $1.8 billion or so for the infringers and paid zero to the creators out of that sales price–being sued in a class action led by the Premier League and also by Viacom–and “groovy new YouTube” which has something of a détente with rich rights holders but which more or less ignores indies.) 

And if what you did after that “change” date addresses copyright infringement in which you were inextricably involved that occurs both before and after that date, you want to be very careful that the “change” you are announcing does not become an admission.  So keep that in mind.

What is Google’s “non-mea culpa mea culpa”?

Google’s Public Policy blog initiates their non-mea culpa mea culpa with a statement which I quote in part:

“….[A]long with [the] new wave of creators come some bad apples who use the Internet to infringe copyright.  [“Some”?] As the web has grown, we have seen a growing number of issues relating to infringing content. We respond expeditiously to requests to remove such content from our services, and have been improving our procedures over time. But as the web grows, and the number of requests grows with it, we are working to develop new ways to better address the underlying problem.”

In an announcement full of interesting twists and turns, the twists and turns of verb tense in this paragraph are revealing.  “We have seen a growing number of issues relating to infringing content.”  Ah, we are just passive observers, not of infringement itself—no, no, for then Google would have actual knowledge of infringement and we can’t have thatThat gets expensive.

No, Google only witnesses “issues relating to” infringement.  (So they admit to actual knowledge of issues relating to infringement but not to infringement.)  But then they switch to the active voice: “We respond expeditiously”—a phrase directly from the safe harbor provisions of the Copyright Act (especially 512(c)(1)(A)(iii) and 512(c)(1)(C) for those who are reading along)—“to requests [i.e., DMCA notices] to remove such content from our services” and “have been improving our procedures over time” the most prominent of which is ContentID on YouTube that figures large in the Viacom-Premier League cases but which, as you will see later, is defined out of this non-mea culpa mea culpa.

Then comes an non-acknowledgement acknowledgement that the judiciary committees of House and Senate that drafted the DMCA had no intention whatsoever that it be used the way Google uses it—as a de facto and rateless compulsory license available to the rich who are prepared to litigate over every packet:  “But as the web grows, and the number of requests [i.e., DMCA notices] grows with it, we are working to develop new ways to better address the underlying problem.”

I would have been fascinated to hear exactly what Google had identified to be “the underlying problem”.  I guess the answer to that question will come another day because they leave it to the imagination—although the four policy non-changes Google announces, or the “Four Horsemen” must be indicators of what they perceive to be the problem.  We will review these Four Horsemen in four separate posts devoted to each, so what you are reading will be the first of four.  Then we’ll separately speculate a bit about Google’s timing that will be of interest to anyone watching the Google Music vaporware–I mean, efforts.

The Four Horsemen:  Google’s non-change changes in its non-mea culpa mea culpa

This is quoted from the Google Policy Blog: “We’ll act on reliable copyright takedown requests within 24 hours. We will build tools to improve the submission process to make it easier for rightsholders to submit DMCA takedown requests for Google products (starting with Blogger and web Search). And for copyright owners who use the tools responsibly, we’ll reduce our average response time to 24 hours or less. At the same time, we’ll improve our “counter-notice” tools for those who believe their content was wrongly removed and enable public searching of takedown requests.”

Google starts by a lurch back into the shadows of equivocation:  What is a “reliable copyright takedown request”?  Let me save you the time—this is not what the Copyright Act requires.  A DMCA notice is designed to be “reliable” if it complies with the statute.  It does not provide for a second layer of filtering—oh, sorry, we can’t use that word in the Googleplex—analysis on the part of the recipient.  That is what the counter notification provision is for.  This is the whole point.

The beauty of the DMCA notice procedure is that it takes the online service provider receiving the notice out of the equation and allows an inexpensive way for artists to protect themselves (within reason, which we passed long ago)—at least that’s how I read the legislative history of what the Congress thought they were passing in 1998 when Vice President Biden, among others, voted for the legislation.  The online service provider receiving the notice is not a disinterested party—it has a financial interest in continuing to make the content available, legal or not.  This is particularly true of search results that return illegal links along side ads and sponsored links.  If that wasn’t clear at the time of the drafting of the DMCA it should be blindingly clear now that the targets of DMCA notices are not neutral.  The Congress can be forgiven for not anticipating that a public company would be so willing to lie down with “bad apples” so overtly.

Google then says they’ll build tools to help copyright owners, but the post then lapses back into the haughty snottiness typical of the Googleplex, lost in the passive voice:  “And for copyright owners who use the tools responsibly, we’ll reduce our average response time to 24 hours or less.”  Ah yes.  “who use the tools responsibly”.  As determined by whom?  Notice, we have switched now from complying with the law to complying with the terms of use or license for Google’s tools it creates for solving the problem it perpetuates.  And now Google, not the law or a court, will decide who is acting “responsibly.”  Which it’s certainly free to do with private contracts, but notice that we skipped over the still undefined “underlying problem” in a typical post hoc gotcha.

Here’s an important side note:  the Copyright Act requires an “expeditious” response, but does not provide a specific time frame.  It should come as no surprise that the Congress did not specify a time frame because those involved with drafting the DMCA wanted to provide a little latitude for reasonable people acting reasonably, and reasonable people would respond as quickly as they could to a notification of bad behavior—not try to profit from it or use it as a bargaining chip.  As a great man once said, “To know the state, you must know the ethical man.”  One way to interpret the statute is that the United States expects that the takedown will occur as quickly as possible, but one recipient may have the means to react more quickly than another.  “ASAP” will have a different meaning if you have tens of billions of dollars in the bank than if you don’t.

So it should also come as no surprise that a lot of games have been played with the time taken to respond to notices by those seeking to play games with the DMCA.  (Everyone seems to think they are entitled to the safe harbor, regardless of whether they fit in the statute or not—no thanks to the Viacom, CC Bill (applicable to DMCA) and Veoh decisions that have bootstrapped this illusion now on appeal.) 

This “24 hours or less” business in the First Non-Mea Culpa Mea Culpa is an example.  Of course, the longer the recipient waits to respond, the more value they get out of distributing the infringing work for which they seek the safe harbor.  Just ask the YouTube founders.  If they can remember.

Just like there are statutory requirements for the DMCA notice, there are statutory requirements for the counter notification.  Again, the point is to force the recipient—likely to be conflicted—to react to a third party process.  As anyone knows who has dealt with Google on its DMCA practice, there is anecdotal evidence that what Google calls a “counter notice” does not comply with the statutory requirements (of 512(g)(3) for those who are reading along):

“Contents of counter notification.—To be effective under this subsection, a counter notification must be  written communication provided to the service provider’s designated agent that includes substantially the following:

 (A) A physical or electronic signature of the subscriber.

 (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.”

There is, of course, the famous example of Google Adsense treating as a good counter notice a statement in Chinese from the infringer in response to a DMCA notice that when translated by the copyright owner turned out to be an apology, not a counter notice at all.  Nobody at Google, or more accurately, no machine at Google, bothered to read it before sending it back to the creator.  But because Google received a reply—any reply—from the infringer, Google accepted it as a counter notice and issued its standard veiled threat to the copyright owner.

One journalist summed up Google’s DMCA policy quite effectively:

“The DMCA is supposed to redress the balance [between rich public companies and small businesses] by helping the individual creator – who doesn’t need a lawyer. But Google hates it, and warns people off using it.

Here’s an example of how Google scares an individual away from exercising their rights. If you dare fill out the DMCA, you get a super-scary warning that:

Your letter may be sent to a third party partner for publication and annotation … your letter may be forwarded to the Chilling Effects for publication …

This implies you’ll be identified and humiliated, and hauled before a cyber court of [bullies], simply for exercising your rights. Bullying was enough to silence Lily Allen – so what chance do you have? Are you feeling lucky?”

Stop Me Before I Infringe Again

So the only “change” that I can see in the First Non-Mea Culpa Mea Culpa is that Google is now saying that they’ll still play the “catch me if you can” game, but they’ll develop “tools” to help creators catch them. 

If the creators use the tools “responsibly” (in Google’s sole determination, apparently), then Google will do something they are obligated to do anyway, they’ll just do it faster than they normally would and reduce whatever profits from infringement a bit.  And if you don’t use the new “tools” (which they presumably will charge for or get some other benefit from) then they’ll keep doing what they are doing now.  And oh, by the way, they won’t be implementing the “change” until they launch the “tools”, whenever that is.  Look at the bright and shiny object boys and girls.

Simon Says YouTube is a “Special Case”

But wait—don’t they already have a tool?   They have the much ballyhooed ContentID tool, right?  Why can’t they use that tool for DMCA purposes across all their platforms the same as they do on YouTube? 

Does anyone really think that a copyright owner would go through all the hassle and expense of participating in ContentID because they only cared about infringement on YouTube but not on Blogger?  Or that the copyright owner wasn’t sure if they were concerned about an infringing link in search results to the same content they registered in ContentID?  For example, would Google have you believe that just because they received a notice for YouTube that the copyright owner might not want to remove the same work from search results linked to the Pirate Bay, Limewire and Isohunt?  All of which have been publicly adjudicated as infringers?

Will Google actually argue that they don’t have actual knowledge of what’s infringing across all their platforms because of ContentID on YouTube?  Looks like somebody thought of that.  According to Simon Morrison, Google’s copyright, policy and communications manager at Google EMEA (quoted in Music Ally): 

“YouTube is not affected by this announcement. It’s a special case: we already remove infringing material within a few hours, and we have the Content ID system which is very successful… We have spent more than $30 million and tens of thousands of man hours building Content ID.”

This would be the same ContentID that is connected to the second of two uses of the word “change” in the Google policy post: “These changes build on our continuing efforts, such as Content ID, to give rightsholders choice and control over the use of their content, and we look forward to further refining and improving our processes in ways that help both rightsholders and users.” (emphasis mine)

So why not use ContentID on other platforms automatically?  Once Google is notified that the copyright owner wants to block, why should Google not be required to block across all their platforms from search to Android apps?  Opt in rather than opt out?  Ah, yes.  Because YouTube is a special case.  According to…whom? 

Isn’t that special? 

Next in Parts 2, 3 and 4: More non-mea culpa mea culpas in Search, AdSense and preview content

See also: Seven Things Google Could Do Today If They Had the Balls