A Fire in the House of Google: What is the Congress prepared to do?

The enormity of Google’s breathtaking $500 million forfeiture for selling illegal drug advertising to consumers sinks in slowly.  For many in the creative community the second thought after “How could they?” is “How does Google treat our fans?”

Google defends their dominant position in search by claiming that users are “one click away” from another search provider and that Google’s essential goodness maximizes consumer welfare for Google customers.  We’ll see.  If profiting from selling illegal drugs to Americans is an example of maximizing consumer welfare, or if promoting the reprodution and distribution of illegal music and movies promotes consumer welfare, I will be very interested in how they convince the Congress.  Google has certainly failed to convince the Department of Justice.  Given their most recent escape from prison time by buying their way out of an indictment, I would say that Google is one click away from stir, among other things.

But Google explicitly holds itself out as providing fair and unbiased search results and is a publicly traded multinational corporation—asking the public to trust them.  Not only does Google want consumers to believe that Google search is not “evil”, but that its search results legal and maximize consumer welfare.  This goes a long way to explaining how thousands of consumers were duped into buying illegal drugs as well as a $500 million forfeiture—unless you are prepared to accept without criticism the Government Accountability Office report that in determining consumer welfare companies like Google get to take into account the positive effects of crime.  That is certainly consistent with the statements of Google’s antitrust counsel that her client Google “promote[s] consumer welfare” in a manner consistent with the antitrust laws.  (See Thomas Sydnor, Punk’d: GAO Celebrates the “Positive Economic Effects” of Counterfeiting and Other Criminal Racketeering available at http://www.pff.org/issues-s/pops/2010/pop17.10-Punk%27d_GAO.pdf.)  Maybe we now know why the GAO stonewalls on who the sources were for its report.

But we now know there is a fire in the house of Google.

Even though safe and legal music, movies and television could be “one click away” from any Google user, when it comes to sending consumers to websites dedicated to distributing illegal content, Google is the dominant method.  The Pirate Bay has said in its own defense that it is no different than Google.

That’s exactly the point.

My belief is that the vast majority of our fans search for music, movies, song lyrics or television programs that they have heard of offline from word of mouth or more likely the hundreds of millions if not billions of dollars that the creative community spends marketing these creations both online and offline. Unsuspecting fans should be able to rely on Google to point them to safe and legal search results, particularly when links to the thousands of legal sites are literally “one click away.”

Google’s search and advertising products appear to be creating results that are at odds with Google’s promise to consumers to deliver fair and unbiased search results.  This perverse outcome is particularly apparent in searches for music or movie titles.

Try looking for the hit music artist Paramore by searching for “paramore music” in Google.  You will get first page search results for the official Paramore website and some other authorized sites.  (And of course—videos linked to Google’s You Tube, legality unknown (the only embedded video search results that have been returned in every music search I have done.)

If you then search for “paramore music torrents” you will get pages and pages of links to illegal sites and there are no legal sites returned.  Topping the results will be sites like the Pirate Bay and Isohunt that are well known rogue sites due to the vigorous criminal prosecutions and litigation to shut them down.  Isohunt is the subject of a recent U.S. District Court decision finding it to be a massive infringer.

Yet Google flaunts links to these sites offering unauthorized content.  I guess this is what Google’s antitrust lawyer meant by “promoting consumer welfare.”

Isohunt is the number two link in my Paramore search and that Isohunt does not link just to a single track, not to an album, but the entire Paramore discography is “one click away” from Google in a single download—5 albums which can be downloaded in minutes.

Try the same process by searching for “avatar movie” and “avatar torrents” and you will find the same results as the music search.  Try a search for any artist and add the word “lyrics” and you will find thousands of illegal lyric sites.

In another example of Google “promoting consumer welfare” from 2009, Google reportedly deleted the Pirate Bay from search results, and then quickly reversed the deletion.  Google thought this was important enough to issue a public statement that said in part “’[the Pirate Bay] 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.’” (CNET, October 2, 2009.)  (A Pirate Bay spokesman referred to the removal as “censoring a competitor” according to Computerworld UK.)

Why was deleting the Pirate Bay URL of such concern to Google and to the Pirate Bay?  Is the Pirate Bay a Google customer for Google’s advertising products?

Google’s “accidental” removal of the Pirate Bay from search demonstrates that Google has the ability to put out at least one fire in its house.  But if Google could remove a known infringer accidentally, couldn’t Google do it intentionally to protect consumers from the harm of illegal sites?

How is it that this obvious and misleading disparity exists on Google when users are “one click away” from legal search results? Because it profits Google to do so through selling its dominant advertising products to dupe consumers into illegal behavior? Is it for the same reason that Google defied our laws protecting consumers from illegal drugs to the tune of a $500 million forfeiture?  “Promoting consumer welfare”?

But these are also examples of how Google uses its dominant position to mislead another group of customers—advertisers.  You know, the ones that actually pay Google money.  Because in the House of Google, nothing is free.  Google’s advertisers realistically have one place to go with their advertising dollars—Google’s many advertising products.  And once they buy their advertising, they have virtually no control over where it appears.  (See Ellen Seidler’s Popup Pirates for a film maker’s account of trying to contact Google’s advertisers to get them to stop paying for advertising on rogue sites.)

These are questions for Executive Chairman Schmidt as all of this happened on his watch.

As Officer Malone said in The Untouchables, “Everyone knows where the booze is, Mr. Ness.  The question is whether you are willing to cross Capone.” Now that Google’s Eric Schmidt is finally coming before the Congress, this will be an excellent opportunity to question him about how consumers are harmed by Google directing consumers to known illegal sites that Google not only can remove from search results but has already done so “accidentally.”  Surely no Member of Congress can accept that promoting illegal behavior promotes consumer welfare.

Just think of the human misery that could have been avoided if Google had removed results for illegal drug sellers.  Or removed the Pirate Bay and Isohunt URLs as they are clearly able to do.

There’s no question about whether Google promotes illegal activity.  $500 million says that they do.  The question is whether the Congress is willing to cross Google.

What are they prepared to do?