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Google’s Selective Human Rights Advocacy on the Protect IP Act

May 26, 2011

Google’s Eric Schmidt was recently quoted in The Guardian saying that Google would continue serving search results to the Pirate Bay because they made too much money to do otherwise…no wait, what he said was “[Seizing DNS addresses] seems like an appealing solution but it sets a very bad precedent because now another country will say ‘I don’t like free speech so I’ll whack off all those DNSs’ – that country would be China.”

This is not the first time we have heard the domino theory from Google and its Amen Chorus–the narrative tells us that if the U.S. passes the Protect IP Act (S. 968) that was voted out by the Senate Judiciary Committee today (or had passed COICA last year), dictators around the world will look to America’s example and do even more repressive things to their people.  So therefore, Google must carry the torch of freedom and continue to sell advertising for illegal drugs indiscriminately (i.e., to kids) and must continue to serve search results for the Pirate Bay, Isohunt, Lime Wire, Rapidshare, Hotfile, Megaupload, Megavideo…etc…to preserve human rights.  (See coverage on Google’s drug problem in the Financial Times, the Wall Street Journal and Forbes and our piece “Where is Harry Lime When You Need Him?”)

No real explanation is given other than a zeal for defending freedom.  That is, everyone’s freedom except the creators.  For creators, Google has to infringe creators’ human rights in order to protect creators’ human rights.

But could Google possibly be motivated by…money?  Or is it that Google actually believes that Robert Mugabe is telling his henchmen to hold off shooting the protesters until he sees what Leahy does.

Right.

Artist Rights Are Human Rights

As we noted in “No Money For Old Pirates: Working People Unite In Support for Sens. Hatch and Leahy S.3804”, the headline for 2010 was the unification of working people and their unions in fighting piracy. The Songwriters Guild of America, the American Association of Independent Music, and the AFL-CIO, AFTRA, DGA, SAG, IATSE and the AFM all have stepped forward and brought their advocacy to bear on legislation that protects workers rights.

This was true of the last rogue sites bill and it is true of the Protect IP Act as well. (See AFL-CIO blog “Bill Targets ‘Rogue Sites’ that Steal Jobs, Steal Wages“.)

This should not come as a surprise—artist rights are widely recognized as human rights. In Artist Rights are Human Rights we said:“These human rights are transcendent and timeless expressions of fundamental entitlements of humanity that safeguards the personal link between authors and their creations as well as their basic material interests. These rights are personal to the authors and artists concerned and are arguably of broader scope than the rights that can be enforced under particular national intellectual property regimes.”

So if Google is so concerned with human rights, then why do they seem unconcerned with the human rights of artists?

The ACLU/EFF Letter

Given the inextricable combination of human rights and artist rights, it’s hard to believe that Google can overlook artists with such applomb.  Schmidt’s recent narrative about anti-piracy legislation being the moral equivalent of censorship and oppression was initially floated in a letter from self-described “human rights organizations” addressed to Senators Leahy and Sessions that opposed COICA, the precursor to the Protect IP Act.   (The letter is signed by the American Civil Liberties Union, Center for Democracy & Technology, Electronic Frontier Foundation, Freedom House, Human Rights First, Human Rights Watch, Rebecca MacKinnon, Reporters Sans Frontières, World Press Freedom Committee.)

In the few months since the letter surfaced, the complicity of public companies in supporting piracy and illegal drugs has become very apparent.  Google, for example, disclosed in a 10Q that it has reserved $500 million for a settlement of some kind with the U.S. Department of Justice over Google’s role in the sale of advertising for illegal drugs–a public company, apparently knowingly, selling advertisements for illegal drugs.  One has to wonder what these human rights organizations think about that–paying legal penance without seeking spritual forgiveness–since Google brought up the “evil” thing.

What Would Google Do?

When you look at the list of signers on the “human rights” letter, one name that jumps out is the Center for Democracy and Technology. What do we know about them?

We know that Alan Davidson formerly headed the Center’s “digital copyright project” (which is more likely “no copyright for digital project”).  Alan Davidson, formerly of the Center, now is Director of U.S. Public Policy, Americas for Google, Inc. And the Google connection is present with other signers of the letter.

If these bona fide humanitarians were asked again to sign this letter–particularly given the revelations that seem to dribble out of the Googleplex on a weekly basis—I wonder if they would sign the same letter now?

This is not to say that the free speech issues are not important because they are.  In his statements to the Congress, noted First Amendment lawyer Floyd Abrams opined that COICA has constitutionally addressed First Amendment issues.  Abrams thought the Protect IP Act also could be drafted so that it didn’t violate the Constitution–a concern that is also paramount to the Congress.  Mr. Abrams was satisfied–not the least because “[c]opyright violations are not protected by the First Amendment.  Entities ‘dedicated to infringing activities’ [i.e., rogue sites] are not engaging in speech that any civilized, let alone freedom-oriented, nation protects.”

So where do these apocalyptic ideas come from?

The Voice of the Prime Mover

Hard to say exactly where these ideas originate, but there is a very interesting talking points memo dated September 28, 2010 from the Center for Democracy and Technology that spells out some of these  ideas. Comparing the Center’s memo to the “ACLU Letter”, some interesting language similarities jump out that belie its sanctimony. Compare these excerpts from the Center for Democracy and Technology’s memo (September 28, 2010) and the ACLU letter (dated October 26, 2010):

The Center’s Memo: “If many other countries adopt S. 3804ʼs approach—and there is little doubt that many would—it will worsen the balkanization of the Internet, undermining the right to freedom of expression and association and threatening the potential of the Internet as a powerful tool for promoting human rights.”

ACLU Letter: “If many other countries adopt COICA’s approach—and there is little doubt that they will—it will worsen the balkanization of the Internet, where the information any individual can access will depend entirely on where that individual sits.”

That’s pretty close. How about this one:

The Center: “S. 3804 also would drive many states, including liberal democracies, to adopt similar policies directed at U.S. content, taking it down worldwide. The scope of protection provided by the First Amendment remains the most expansive in the world, and speech protected in the United States remains proscribable in many other democratic countries (for example, hate speech in France). Local access to such speech remains a frustration for governments in those countries, and they would welcome a U.S.-based precedent to justify blocking it.”

ACLU Letter: “COICA could also lead many states, including liberal democracies, to adopt similar policies directed at US content, taking it down worldwide. Content that is fully protected under the First Amendment Remains proscribable in other countries, such as hate speech in France and Germany, and local access to such speech remains a frustration for governments in those countries.”

Proscribable, I think. Here’s another:

The Center: “In countries where rule of law is weak or entirely absent, meanwhile, S. 3804ʼs approach opens the door to serious misuse. As Microsoftʼs recent experiences in Russia have revealed, governments can exploit copyright laws as a pretext for suppression of political speech. Further, once the United States sends the green light, the use of domain locking or ISP domain blocking to silence other kinds of content considered unlawful in a given country—from criticism of the monarchy in Thailand to any speech that “harms the interests of the nation” in China—will surely spread, impacting bloggers, citizen journalists, human rights advocates and ordinary users everywhere.“

ACLU Letter: “COICA’s approach could be misused in countries where the rule of law is weak or entirely absent. As Microsoft’s recent experiences in Russia have revealed, governments can exploit copyright laws as a pretext for suppression of political speech in other parts of the world. Further, once the US sends the green light, the use of domain locking or ISP domain blocking to silence other kinds of content considered unlawful in a given country—from criticism of the monarchy in Thailand to any speech that “harms the interests of the nation” in China—could metastasize, impacting bloggers, citizen journalists, democracy movements, human rights advocates, and ordinary users all over the world.”

That quotation is practically word for word the same as the CDT talking points memo. So I think the argument that the Center (or its benefactors?) are making is that the US can’t protect its artists and innovators from massive online theft, can’t protect the public from Google’s advertising of illegal drugs, and has to permit public companies to sell advertising on pirate websites because the bill might potentially repress some unknown person in some other country at some point maybe.

So here’s the problem: Is Schmidt’s sudden interest in piracy-as-free-speech something he came up with all by himself, or is it a contrivance of a K Street lobby shop?  An idea that got little to no traction when it was first floated that Schmidt is now dusting off and re-injecting into the press?  And why does either Schmidt or CDT think that anyone will buy it outside of the Google Amen Chorus?  Particularly when the bona fide humanitarians who signed the ACLU/CDT letter suddenly find themselves joined at the hip with a company paying a $500 million fine for serving ads for illegal drugs?

Artists Must Bend

What is astonishing to me is that the ACLU—an organization that always has their hand out to the entertainment industry—is yet again siding against us on a matter of existential importance to us.

I feel sorry for the legitimate humanitarian groups that got themselves involved with these people.  It should come as no surprise that every time you deal with the consumer electronics industry and their fellows, the answer always is that artists must bend to them. That’s got to change.

Yet Eric Schmidt used much the same argument to tell the world and his stockholders that Tyrell Corporation–I mean…Google—has no intention of following the law.  The company has since walked that back–a bit–but which do you think it a clearer statement of Google’s true intentions?  Or who their fellow travelers are:  Rick Falkvinge, call sign “Hawkman” for example, founder of the Swedish Pirate Party–which has no connection to the Pirate Bay don’t you know, who echos Schmidt–or maybe it’s the other way around.

In an interesting post, a Forbes writer tells the world uncritically that “So important is the principle of free speech to Google, that the search giant is ready to stand up for sites like the Pirate Bay as European governments prepare to launch new laws to block them.”

Unfortunately for Schmidt, the Pirate Bay doesn’t return the favor; Peter Sunde says:  “I think Google are a bunch of people trying to be good people but they know  they are not – they are a big bunch of liars. Google is too good to be true – they went into China not to help the Chinese people but to make money and gain a  big chunk of the search engine market in China. I hate that people [who] have so much influence on the internet don’t actually care about the  internet.”

Could Google’s apparently unwelcome interest in “defending the Pirate Bay” possibly be because the Pirate Bay is frequently at the top of Google’s music search results?  And makes content available illegally to its Android Market applications that Google can’t manage to negotiate licenses for?  And they wonder why the creative community doesn’t trust them.

If you are going to tell the world you want to protect human rights, protect the rights of all the humans.

See Also: Artist Rights are Human Rights

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