A Red Herring Guide: Google’s non-movement on piracy

When your mission statement is to organize the world’s information whether the world likes it or not, you have to view your life as a marathon, not a sprint.  Particularly if your goal is to undermine the world’s intellectual property laws to your own commercial advantage.

Google was invited to testify at Chairman Leahy’s hearing on rogue sites earlier this year.  With their usual “make me” hubris like a bully on a beach volleyball court, they let the Congress know what they thought of them in one deft move.  So I guess they decided to wait to appear before Congress until after the week that they lost the Google Books case, the FTC laid a 20 year consent decree on them because their privacy law violations are so vile, and Microsoft filed a complaint against them with the European Commission.  And then there’s the US Justice Department Antitrust Division.   And then there’s the Android phone apps that make downloading from rogue sites to a smartphone so much easier.  And then there’s….and then there’s….and then there’s….

Apparently, Google is sending a representative to testify before the House tomorrow (April 6) at the House Subcommittee on Intellectual Property, Competition and the Internet hearing “Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part II”.  Now they want to appear?  Yep, another example of perfect timing from the smartest guys in the room.  It’s hard to be sure, but something tells me there are no drummers in the Googleplex.

Google will be testifying at the House IP subcommittee hearing on rogue sites legislation which has the delicious title: “Legitimate Sites vs. Parasites” and is likely to focus on the unholy alliance between search engines, adserving companies and rogue sites.  Expect Google to come fully equipped with their usual “I’m smarter than you, why am I talking to you” attitude–because you know that Stanford means never having to say you’re sorry.

Also expect them to say they have a cooperative relationship with the music industry.  By which they mean the major labels, and even that is not exactly true.  One example of this they will give is Content ID, they YouTube system that allows content owners who have the resources to have someone (or several someones) sit on YouTube all the live long day to block their content.  Remember that, we’ll come back to it.

So presented with what appears to be a serious roadblock on the path of the long distance run toward organizing–and controlling–the world’s information, Google did what it seems like it always does.  It tries to put up a smoke screen.  This allows Google to say to people who don’t have the time to really drill down on what the company is saying and who want to believe they don’t do evil–let’s call them stockholders–that Google is addressing the problems.  This ignores how they got into the problem in the first place and if stockholders are not paying close attention, they won’t realize that the way Google has chosen to deal with an infringement problem is not a solution.

That’s usually because a solution would require Google to stop doing something bad or to give up revenue from something bad.  And of course Stanford means never having to say you’re sorry.

Even so, I would also not be surprised to see some kind of new initiative from Google announced before Wednesday, April 6 at 10:45 am ET.  That’s when the hearing starts.  They are going into uncharted territory for them–testifying before a Congressional committee that is probably loaded for bear.  This can involve things like invoking the protection of the 5th Amendment.

But here’s a quick look at the initiatives they came up with after the Senate Judiciary Committee passed the last rogue sites bill unanimously in waning days of the last Congress.  (For more detail, see “One Bad Apple: The Complete Checklist on Google’s “Non Anti-Piracy” Anti-Piracy Policies“)

1.  “We will improve our AdSense anti-piracy review. We have always prohibited the use of our AdSense program on web pages that provide infringing materials. Building on our existing DMCA takedown procedures, we will be working with rightsholders to identify, and, when appropriate, expel violators from the AdSense program.”

If Google “prohibits” Adsense on web pages, does that include popups that you have to click through on the way to Megaupload, for example?  (Megaupload is a prime example of a rogue site and is one of the top 100 websites in the world.  It’s not like Google doesn’t know it’s there.)

And while they may “prohibit” the use of Adsense on infringing sites, that prohibition isn’t stopping anyone from doing anything and sure does look like it is putting significant income into Google’s pocket.  So instead of “prohibiting” how about “stopping”.

2.  “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.” 

First, as film maker Ellen Seidler details in her Popup Pirates blog, Google’s “counter-notice” procedures are a joke.  Basically, Google treats pretty much any return email from an infringer as “counter notice,” even if it’s in a language other than English.  It’s also unclear to me if the safe harbor under DMCA even applies to advertising, or if it does, to advertising served outside the US.

Remember Content ID that YouTube uses in part to block users from posting material that has been identified as infringing?  If Google can use Content ID to block on YouTube, why not use it to block other sites, too?  In fact, why not use it to block on all sites? 

So this initiative is shot full of wiggle words and completely ignores any responsibility on Google’s part regarding how the infringing materials got on the Google service in the first place.

3.  “We will prevent terms that are closely associated with piracy from appearing in Autocomplete. While it’s hard to know for sure when search terms are being used to find infringing content, we’ll do our best to prevent Autocomplete from displaying the terms most frequently used for that purpose.  (‘Google’s autocomplete algorithm offers searches that might be similar to the one you’re typing.’)”

How about preventing those terms from returning any search results at all?  Google managed to “inadvertently” block the Pirate Bay from search results a while back.  Google said at the time, “”Google received a (Digital Millennium Copyright Act) take-down request that erroneously listed Thepiratebay.org, and as a result, this URL was accidentally removed from the Google search index,” Google said in a statement. “We are now correcting the removal, and you can expect to see Thepiratebay.org back in Google search results this afternoon.””

How about intentionally blocking the Pirate Bay this afternoon?  And Isohunt, and Limewire, and…and…and….

4.  “We will experiment to make authorised [sic] preview content more readily accessible in search results. Not surprisingly, we’re big fans of making authorised [sic] content more accessible on the Internet. Most users want to access legitimate content and are interested in sites that make that content available to them (even if only on a preview basis). We’ll be looking at ways to make this content easier to index and find.”

Remember, this is the angle that they were playing in Google Books, too, which was going to make “snippits” available–after they scanned 15 million books, without permission for the most part.  And by the way, they may be “fans” of making “authorized content” available–but they just lost a multimillion dollar litigation over making unauthorized content just as available.

The Coyness of the Long Distance Runner

Google is nothing if not coy, and the coyness comes from a old, old place for monopolists.  They have more control than anyone else, are willing to spend vast sums of money on legal fees to litigate against people who have difficulty affording the litigation (such as the authors of the world), and are intent on jamming it down everyone else’s throat. 

Whether they are arrogant enough to think that they can do this to the U.S. Congress remains to be seen, but we’ll get a good indicator tomorrow.

My bet?  They absolutely think they are smarter than everyone else.

If they show up.

House Subcommittee on Intellectual Property, Competition and the Internet.  “Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites, Part II” Wednesday 4/6/2011 – 10:45 a.m.