One Bad Apple: The Complete Checklist on Google’s “Non Anti-Piracy” Anti-Piracy Policies

Written by Chris Castle

[Editor Charlie sez: It was recently reported that Google has now received notices for over 10 million infringing links in search results–actually a low number given that Google receives 3 million notices a week for search alone–i.e., not counting Blogger or YouTube.  Before the anti-copyright crowd goes spinning into the ether that the volume of notices is somehow evidence of the orphan cause of action “copyright misuse”–Google acknowledges that 97% of these notices are properly sent.  “One Bad Apple” was first posted on 9/2/2011 after the COICA legislation caught Google’s attention and the company announced it was taking steps to protect the interests of artists because they really do care.  It was reposted on January 13, 2012–no change.  And as we all know–purity is a prophylactic against scrutiny.  Let’s see how much–if anything–has changed since January 13, 2012.  The answer?  Nothing.]

This post is a compilation of our four separate posts on Google’s recent non-concession concessions on its profit from piracy.  These issues are particularly important now (9/2/11) as Google pays off a $500 million forfeiture for promoting the sale of illegal drugs that drew a shareholder lawsuit (if for no other reason that the $500 million payment that kept irresponsible officers out of jail was made with the shareholders’ money), sends Eric Schmidt into a Senate meeting and is bracing for a raft of wrongful death, manslaughter or other charges that could come from grieving parents and states attorney general.  Not to mention RICO, who is waiting in the wings–just ask Michael Milken.

Remember–you have to read every single word of Google’s public statements about how they profit (or say they don’t) from bad acts–and read the words very, very carefully.  Just remember–they said all this stuff before they paid $500 million to keep the drugs case from going to trial.  And of course these statements only applied to piracy and copyright infringement–not advertising drugs to kids.  Why mix up the concepts?  How about Google won’t do anything illegal or…dare I say it…evil.   Can’t have that, there’d be no company then.

Next time–prosecutors probably won’t let them buy their way out of jail.  Every dog gets one “free” bite.

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.   That December statement was recently confirmed by Google’s General Counsel Kent Walker–you remember him, poor guy, he’s the one who Congresswoman Debbie Wasserman-Schultz told that Google was aiding and abetting theft at the April IP subcommittee hearing they both attended.

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 separately.  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

1.  Smoke and mirrors on takedowns

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 scare 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?

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

2.  Almost Filtering

 “Google: Pirate Bay booted off search by mistake

“’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.’

Later, Google updated it’s statement: ‘The removal appears to be an internal error and not part of a DMCA request.’”

Well.  I guess they can filter, if only by mistake.

Google’s proposal for addressing piracy concerns with its search index seems a bit limited given that they were apparently able to remove the entire Pirate Bay from search results.  In a post on the Google Public Policy Blog, the company said:

“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.’)”

So if you were to use Google’s Discover Music search “Paramore Ignorance torrents” as opposed to Google’s suggested test search “Paramore Ignorance”, would the “torrents” search be kept out of Autocomplete?  Not so far—number one search result for the Google Discover Illegal Music search of “paramore ignorance torrents”?  The Pirate Bay. Followed by Isohunt.  One criminally convicted, the other found liable for copyright infringement.

What if Google were told that nobody had licensed Paramore for any transmission using BitTorrent?  Would that be enough?  What do you bet it wouldn’t be?  I just can’t wait to see how this Autocomplete thingy works.  Taking into account fair use as a business model for a multi-billion dollar corporation and all.

What does trying to anticipate search terms accomplish, though?  Not much.  The point isn’t to stop searches for illegal files, the point is to stop the illegal files from being returned in search.

Like Google did by mistake.

3.  The Unholy Alliance: Search, AdSense and Rogue Site Partners

There are many inside and outside of government who believe that the only effective way to tackle  massive online theft retroactively and prospectively is to dry up the ability of these  rogue sites to profit by selling advertising or subscriptions.  Thus, from a long-term law enforcement perspective, the most effective part of the DHS actions and the Leahy-Hatch legislation is the seizure of advertising and credit card accounts from the criminal defendants—accounts that would  likely include some of Google’s AdSense “partners”–not just the seizure of the domain names.

Although Google’s Amen Chorus in the press and online have tried to focus attention on the government’s court-ordered seizures of domain names, seizing a domain name alone doesn’t do much to dry up the revenues although it’s definitely a speed bump, and may discourage some rogue sites from relaunching when combined with prosecution.  The rogue site can soon pop up again—but drying up sources of revenue could be permanent, particularly if it results in the adserving companies actually paying attention to what their customers are actually up to.

This is also true of cutting off the credit card companies available to rogue sites using legitimate credit cards to fulfill the sale of illegal goods.  This is not to say that the now stigmatized rogue site couldn’t find some adserving company or credit card company to prop them up, but the wheelmen are going to pay a higher vigorish commensurate with the higher risk, and therefore the margins are not likely to be what they were from good old AdSense.  At least that’s how it works with other criminal enterprises.

Naturally, the Google Amen Chorus did not message this tacky greediness (which is not very Googley).  Instead, we heard about first amendment concerns (which was probably rather insulting to Chairman Leahy and other members on the largely unchanged Senate Judiciary Committee who are staunch allies of free speech).  These are not well-founded claims and are discussed in an excellent series of posts by Terrence Hart on his Copyhype blog.

We also heard about human rights concerns, including the strange letter from some legitimate human rights organizations that seem to have simply signed a letter to the Congress that had been lifted wholesale from a talking points memo previously released by the Center for Democracy and Technology—and which ignored the substantial history of human rights protections of the human rights of artists.  These legitimate human rights groups are good people who seem to have fallen in with the wrong crowd and who tarnished, if not compromised, their good names—all to protect Google’s cash flow from advertising sales on rogue websites?

One could surmise that Google were then confronted by the reality that the Congress and law enforcement had heard all this before and were not impressed at all.  These are criminal prosecutions—the defendants have all the defenses and due process available to them.  Yet I’m quite confident that we’ll see some show trials possibly financed by you know who–directly or indirectly.  (Can Charlie and the Poker Players be far away?)

But the recent government attention to rogue sites puts the downside of selling advertising to these enterprises on an entirely different scale.  Particularly if your company is already under investigation for many things by many governments around the world.  We are way past egging houses now.  (See map above.)

Realize that there is nothing new about Google’s fascination with setting up AdSense accounts for rogue sites:  As the Wall Street Journal noted in 2007 (reporting on a case that may date back to 2003):

“Instead of relying on spam emails to drive traffic to [EasyDownloadCenter.com and TheDownloadPlace.com], [these rogue sites] decided to rely on Google advertising. The high volume of traffic on EasyDownloadCenter.com and TheDownloadCenter.com caught Google’s attention, according to people familiar with the [case]. To help stoke the traffic further, Google assigned the sites account representatives who suggested keywords they could bid on. Google also offered [the sites] credit so they didn’t have to use their credit cards to pay Google’s fees….The defendants in the case, Brandon Drury and Luke Sample, said in sworn statements that Google representatives offered them credit to buy advertising on Google’s search engine. They also said Google supplied them with keywords, including terms such as “bootleg movie download,” “pirated,” and “download harry potter movie,” which boosted traffic to their sites, according to people familiar with the case. In court filings, both men deny any wrongdoing.” (Emphasis mine.)  Of course–this case settled.

This unholy alliance between Google and pirates was even noted in a 2008 case study from the University of Malaysia (at p. 13):

“Another opportunity basically about how Google could provide an incentive for newspapers and bloggers to do more original reporting rather than just rehashing previously published reports. Google has an appealing prospect to help deal with these problems. Google grants most of the search hits that take people to these pirate sites, and it also places most of the ads that bound the pirated content. There are a variety of methods that Google could act of kindness [to] the original creators and [to] difficulty the pirates. Google could positively know what pages contain new content; it could identify the pirate sites and not simply reprimand them in its rankings but simply cut them off. Google could get that knowledge by having a recognized business relationship with the content suppliers.”

Well…don’t be moral, ya’ll.

Yet there is nothing like a criminal prosecution to focus the mind, except maybe a RICO criminal prosecution.  (It is important to note that Google Adsense is not the only adserving company implicated in the investigations and legislation, but given Google’s dominant position in online search advertising worldwide, it should not be surprising that Google is not only genericized for “search,” it is becoming genericized for the unholy alliance of rogue sites and adserving companies served by commercial search.  Instead of “I googled it again” you may hear “I got googled again”.)

The Wall Street Journal also tells us that “[a] Google employee deposed in the [Easydownloading] case largely corroborated the defendants’ accounts, these people said. The Google deposition has been sealed by the court. [Or more likely, Google successfully moved to have the court seal the deposition because they didn’t want the admission used against them.] Of the $1.1 million in revenue the two sites — EasyDownloadCenter.com and TheDownloadPlace.com — generated from 2003 to 2005, $809,000 was paid to Google for advertising, the people said. The sites have since been shut down.” (Emphasis mine.)

Remember that in the 2007 case, Google said “Google said it prohibits advertisers from promoting ‘the sale of copyright infringing materials.’ It also said, ‘We are continually improving our systems to screen out ads that violate these policies.'”  Of course–it’s not the advertisers who are the problem,  it’s not the ads that are the problem, it’s the sites hosting the ads using Google AdSense accounts (or links, pop-ups or other connections to those ads designed to obfuscate the AdSense connection despite the “Ads by Google” logo).  As Ellen Seidler found in her research, the advertisers trust Google not to impugn their brands (such as Deutsche Bank) by serving their ads to rogue sites–frequently without the advertiser’s knowledge or approval.

So–with all that in mind, here is the third “change” in Google’s policies:

“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.”

Typically cautious and equivocating, Google says it will “improve” its “Adsense anti-piracy review”.  Another post hoc gotcha, this statement would have you believe that there actually is an anti-piracy review to be improved at AdSense–apparently under review since 2003 in the EasyDownload case.  Who knows what “improving AdSense policy review” even means.  Plus–why just AdSense?  Why not the Google-owned AdMob?  And DoubleClick?  Was Google permitted to acquire these companies so that they could better service rogue sites?

And even in the AdSense context, what exactly does “improve” mean?  Doesn’t that imply that they actually were doing something in the past that they could be doing better in the future?  Better credit terms for rogue sites perhaps?

As far as we have been able to determine, if there was any concern with AdSense policy it was only focused on the activity of the AdSense partner when the account was initially set up.  (Aside–who wants to bet they stop using that “partner” word?)  Unlike many other adserving companies, it appears that the AdSense partner is pretty much free to get an AdSense account for http://www.momsapplepiealamodedontyouknow.infous on one day and be thepiratebay the next.

Like so many of Google’s head-fake moves, this one actually raises more questions than it answers.

Having said that, a form has appeared in Google’s correspondence to complainers that (maybe for the first time) allows anyone to report a website by the URL of the website–not links within the website–because “[t]his site is distributing someone else’s copyrighted material, possibly without permission.”

While it is more of the “stop me before I infringe again” operations so common to Google, the form seems to acknowledge that the overriding issue as between Google and the advertiser is a violation of Google’s AdSense terms–the DMCA shouldn’t apply.  Unchecked massive violations of these terms may give rise to a claim against Google by its advertisers, perhaps followed shortly by yet another FTC or EC investigation.  For example, if it could be shown that Google had not changed its rogue site strategy since 2003, the FTC might find that an interesting fact.

Even so, it is unclear exactly what action Google currently takes in response to these AdSense complaints–it seems that they rarely take any action they are not forced to take.  So far, we’ve seen no evidence that Google has missed any meals over it.  The only people who can really force them to do anything…I guess is the government, and even that is an open question.  Such is life in the two Gulfstream family.

Please stay tuned for Part 4 and wrapup.

4.  The Preview that Ate New York

On first blush,Google’s four-part press release appears to be a change in business practices for the company regarding illegal content it promotes and monetizes through its search and AdSense operations.  (This is separate from other illegal practices—at least in some countries—of its other divisions such as Street View and YouTube.)  And remember—these changes in Google’s practices are designed to address “a few bad apples.”

Google could do something as simple as saying the Pirate Bay have been criminally convicted of copyright infringement, maybe we should filter out results from the Pirate Bay, or saying Isohunt  and Limewire were each found liable for copyright infringement, maybe we should filter out results from them.  Or even Megavideo is not licensed by anyone, maybe we should filter out their results—and not sell advertising on the site, either.

Instead, Google ignores the probability that the overwhelming majority of the content on these sites is unlicensed and expects content owners to not only send them notices on a link by link basis (see Ellen Seidler’s account of her experiences at Popup Pirates), but also wants content owners to license recordings, movies and television to their Google TV and Google Music offerings and ignore the unholy alliance of rogue sites, ad serving companies, search engines and credit card companies.

Meaning that Google wants to sell advertising on rogue sites and also sell legitimate content under license.  And then they tell us:

“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.”

“We will experiment to make authorised [sic] preview content more readily accessible in search results.”  (Sounds like this was written by a Brit.)  I would bet that Google is not planning on paying for the “preview content” and probably does not plan to even get a license for previews.  So what this statement really says is that Google is not planning on taking aggressive steps to filter in good faith the obviously infringing URLs—which they clearly could do and have done in the past—and they plan on making “previews” even more readily available than they already are.

So what is the difference between a “preview” and the actual work being previewed?  Good question (if I say so myself), particularly when Google doesn’t seem very interested in restricting the length of clips based on anything other than what suits them as a matter of scale.  Google has never had any interest in restricting itself to take into account the effect of their use upon the potential market for, or value of, the copyrighted work.  Now where have I heard that before….

“Not surprisingly, we’re big fans of making making authorised [sic] content more accessible on the Internet.”  Actually—that is quite a surprising statement.  If the YouTube acquisition is any guide, not to mention Google search, Google’s AdSense policies, data retention practices, Google Books and Street View, one could reasonably draw the conclusion that the opposite is true—Google is very interested in taking everything that’s not nailed down until a plaintiff gets a final non-appealable judgment on a packet by packet basis in every jurisdiction of the world.  Ask yourself how many books Google has scanned without a license during the time that it has taken you to read this post.  And of course if they don’t want to get caught doing something wrong, they probably shouldn’t be doing it in the first place.

Google’s announcement tells us that “[m]ost 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).”  Is that a conclusion logically drawn from the billions of downloads of illegal content?  Is that a conclusion that is supported by the untreated vitriol spewing from trolls on every comment board that supports creators?  Isn’t a more likely conclusion that “most” users would like to get away with it and use several different Google products to do it?  Or would you believe Google’s contention that rogue websites, Operation Payback, etc., are just “a few bad apples.”  It doesn’t appear that either the FBI or ICE think so.

Isn’t it also more likely that when companies like Google sell advertising on rouge websites, users of those sites will be more likely to think that if Google is selling ads on a site, it can’t be illegal?  Isn’t it more likely that the presence of the Google brand, not to mention the brands of its usually unwitting advertisers, gives the appearance of legality to the average person?

I think it’s pretty obvious that Google’s four “changes” are not really much of a “change” at all.  There’s no epiphany here, no miraculous cure of their willful blindness on the road to Bethsaida.  As Luke Johnson (former head of UK’s Channel 4) says in the Daily Mail, “Essentially, Google pays for no content whatsoever, but parasitically lives off the back of all those organisations that actually commission writers, actors, directors, producers to make original material.  All those film-makers, journalists and others who are being thrown out of work can blame Google: they have ransacked the UK media industry, and are not even paying reasonable levels of tax on their usurious gains.”

If Google genuinely want to engage in good faith negotiations with the creative community they can take a few steps to increase the level of trust—which at the moment is practically nonexistent and for very good reasons.

1.  Agree to follow the Advertiser’s Bill of Rights:  Harvard Business School professor Ben Edelman has developed a few simple rules that advertisers could reasonably expect would be followed, especially by a company like Google.  First and foremost:  transparency.  As Professor Edelman says:  “An advertiser [has the] right to know where its ads are shown.  It is nonsense to pay for ad space without knowing where an ad will appear; sites vary too much in user quality and context.  Even for “blind buys,” advertisers need enough information to determine whether a given site qualifies to show an ad.  Anything less undermines accountability—inviting fraudulent sites that devour advertisers’ budgets.  And with all manner of fraud—from spyware pop-ups to invisible banners to adult sites slipping into networks that claim to be brand-friendly—advertisers need to be wary.”

I am quite confident that Deutsche Bank does not want to advertise on Megavideo.  I’m also quite confident that the company has no idea that Google is serving its ads on rouge sites.  If it did, and had the ability to set the standards, monitor the results and punish the violator, the market would likely take care of a good deal of piracy simply by drying up the cash flow when advertisers withdraw their advertising dollars.

2.  Voluntarily Filter Known Infringers from Search:  Google could block the obvious adjudicated infringers en masse.  There’s no credible excuse not to.  If there happens to be someone who wants to have their work included in search results from a rogue site, then let that copyright owner come forward and request it.  It makes no sense that the world’s biggest search company can engage in willful blindness to massive infringement based on a theoretical group of people who want to have their works available on these sites to the extraordinary detriment of those who do not.

3.  Do Not Sell Advertising on Rogue Sites:  Google could easily engage in monitoring of their AdSense partners and require human approval of any change in the URLs associated with an AdSense account—and train their staff in how to recognize a rogue site.  They’re the unlicensed ones.  If an AdSense account wants to advertise on a rogue site, put the onus on the account to explain that one.

4.  No Contrived “Previews”:  Do not include a preview in search for which there is no underlying license of the previewed work.

5.  Demonstrate How Google Intends to Account for Commercial Uses and How They Can Be Audited:    I am unconvinced that Google will render accurate accounting statements given what I hear about the experience to date.  It is also highly likely that they will be extremely resistant to a royalty auditor giving them the microbial scrub.

Before any more deals are done, it is only fair to artists and songwriters that Google demonstrate a robust and transparent accounting system and agree to an acceptable methodology for retaining and auditing usage data.

Just getting a big advance without proper accounting will penalize artists and songwriters because it will be difficult for the label or publisher receiving the advance to properly account to their creators.  That is why Google must be held to the same standards as Apple and others, at a minimum.