YouTube and Google are both fit for purpose, it’s just that the purpose is unfit.

The Pinto Gap

Google frequently defends what I would call the “Pinto Gap”–Google’s business practice named after the notorious Ford Pinto model with the exploding gas tank.  Why the “Pinto Gap”?  Because one would have to believe that Google has determined, just like Ford, that the cost benefit of programming their search algorithm to play whack a mole with artists profits them more than “doing the right thing.”  One day we may find out if there is a “Pinto memo” at Google.

Remember the Viacom case?  Of the few internal YouTube emails that Viacom was able to recover this one from YouTube co-founder Steve Chen sums it up nicely as reported by USA Today:

Viacom says Chen discussed in another instance how YouTube could handle a hot news clip from CNN: “[I] really don’t see what will happen. what? someone from cnn sees it? he happens to be someone with power? he happens to want to take it down right away. he gets in touch with cnn legal. 2 weeks later, we get a cease & desist [takedown] letter. we take the video down.”

This is known as the “DMCA license” which of course is neither permitted by the DMCA nor a license.  But it may as well be based on the decisions made by tech companies and especially Google about how to manipulate the DMCA (and the Communications Decency Act for that matter).

Recall that the reason Ford was nailed so badly for products liability on the Pinto was that it turns out that Ford knew that the Pinto gas tank was dangerous and would probably explode.  Ford made a horrendously cold-blooded decision to put the Pinto into commerce anyway.  Why?  Because during the gap between the time that Ford put the car into commerce and the time they got caught, cost/benefit analysis of the risk allowed that the profit they made was worth the cost to Ford of harm to the public.  Of course, no Ford executive ever went to prison, so there is that.

Google, like Ford, knew and knows exactly what it is doing by putting its search engine into commerce (not to mention YouTube, a hot bed of infringement).  Google’s search engine is the Pinto of the Internet, kind of an iPinto if you will.  Google lawyers like Mr. Von Lohman attempt to twist the copyright law around to create a gap between the time they start allowing infringing content to be put into service and the time they get caught–what I call the “Pinto Gap.”  This is the practical effect of what Mr. Lohman obfuscates by saying that Google can’t tell what is and isn’t “illegal”.  And likely what made YouTube such an attractive acquisition for Google.

And after all, Ford couldn’t control the other drivers who collided with the Ford Pinto, right?  Why should Ford have any responsibility for them, Mrs. Palsgraf?

While the Pinto Gap was not specifically articulated by Google, it is exactly Google’s business practice that film producer Richard Gladstein recently raised in front of Chairman Goodlatte.  As Ted Johnson reported:

Among those giving input to the committee was Film Colony founder Richard Gladstein, who cited search engines as “aiding and abetting” criminal piracy sites by placing them atop search results. As an example, he said that before the hearing he entered “Watch ‘The Cider House Rules’” into his phone, the the first three results that came up were illegal sites…

“We are not in a position to decide what is legal and what is illegal online,” Von Lohmann responded.  [This is the predicate for the Pinto Gap argument.]

Then Gladstein asked, “Is it legal or illegal to download a movie that you don’t own?”

Von Lohmann answered, “I agree. Downloading a movie, in order to watch it without paying for it, is infringing. That is not the problem. [Here comes the red herring.]

[Von Lohmann continued] The problem is when you have over a trillion websites, you have hundreds of thousands of film titles, millions of song titles, not just in English but every language around the world … as a search engine there is no magic way for us to know in advance what is legal and what is illegal online. We rely on copyright owners to inform us.”

And they do–78 million times in the last 30 days alone:

Source: Google Transparency Report

That’s right–Google received over 78 million take down notices for search alone (not including YouTube or other Google properties) and is on track to receive about 1 billion takedown notices for search alone–this year.  And that doesn’t even include YouTube.  But Google says that infringing videos are not “the problem”?  Really?  Google has built a product that it is powerless to control?

Not true–it’s actually much easier for Google to fix its Pinto problem than it was for Ford to fix theirs.  Google doesn’t have to issue a recall.

The Hash-Based Force Multiplier

Google could, of course, block the hash for each file that is the subject of a DMCA notice.  In fact, there’s nothing in the Copyright Act that prevents a copyright owner from including the hash of a particular file in the DMCA notice to Google.  If any copy of the file is illegal, then every copy of that file is also illegal and every copy of that file will be identifiable by a hash–which Google also crawls and indexes.

The “hash” is a unique machine-generated alpha-numeric identifier associated with file copies including infringing files (not metadata titles, but the files themselves).  Google crawls the hash and includes it in their search results.  Because multiple links or torrents may point to the same infringing file this will produce search results that point to a known infringing file.

Case in point: The most popular Taylor Swift torrent today has this hash for her album 1989:

0E7B8E22D5A2F2E77FFDBA8C02A870EDEAC6400E

If you enter this hash into the Google search, you get 700-plus items in the search results (or you will until some Googler reads this post and kills the links).  Assume Google received a DMCA notice for this torrent (and hash) of 1989 and blocked results based on the hash–there would be 700 fewer search results directing people to steal from Taylor Swift.  But they don’t.  Why?  Because it might be an effective way to at least begin to close the Pinto Gap.

Think about that–if Google has received 62 million DMCA notices and each of these links points to one copy but that copy actually appears on dozens or hundreds of other links which the copyright owner has not found and has not sent a DMCA notice, it gives you a better sense of the true scope of the problem.  And just why Google would want to play whack a mole.

Remember–even under Von Lohman’s own terms, once Google has been informed that a particular file is an illegal copy, Google will block the link.  The hash is a unique identifier for that illegal copy and links to the same illegal copy may be posted on many different sites.  Every time that file (and hash) appears again, Google has already been notified that the file is an illegal copy, so Google should block it based on the hash.  That requires no ContentID nor should it require any further notifications to Google.

What does Von Lohman think that searches for these videos are driven by if not the marketing budgets of artists, filmmakers and authors?  The whole point is that infringing works are the problem, and at some point if you are told the gas tank that you put into commerce is injuring people, you can’t hold your head up honorably and say you didn’t know.  You need to do the right thing.  To coin a phrase.

And yes, we know that these movies appear in many languages–as Ellen Seidler taught us years ago, her indie movie appeared with subtitles in dozens of languages within hours of the first time it was pirated, dutifully listed by Google in search results.  I wonder if Mr. Von Lohman thinks that happened by accident.  Another reason why blocking hashes is a superior method.  Hashes are not language dependent.

Preserving a Defense that Will Never Be Used

If Von Lohman thinks that these might be “fair use”–which is an odd position for a number of reasons–let’s all remember that “fair use” (like the safe harbor) is an affirmative defense to copyright infringement that a defendant could raise if they showed up to defend themselves in a U.S. court.  (Other countries have similar laws.)  Ask yourself this:  Does this top ten takedown list look like the operators of these “specified domains” will be showing up in a U.S. court any time soon?

This list includes some of the worst infringers of all time, none of whom intend to end up in a U.S. court (In October 2014, Uploaded.net was found liable for copyright infringement by the Regional Court of Hamburg. Rapidgator is blocked in Italy and potentially elsewhere).  Given that there will likely never be an adjudication of infringement in a U.S. court, should a U.S. corporation like Google be allowed to stand in the Pinto Gap and profit themselves from these repeat infringers with the excuse that they don’t know how cases that can never be brought will turn out?  Should Google be allowed to put a product into service that predictably harms far more humans than the Pinto ever did?  Doesn’t an American public company have some obligation to address doing business with flagrant violators of U.S. law?

And remember–when it comes to Google’s core search function business, there is every reason to assume that Google’s search algorithm is functioning as designed and as perfected.  It’s not like Google doesn’t know that it has a problem.  Google search gets over 78 million trouble tickets a month.

Google stands with what appears to be a network of criminal enterprises engaging in more copyright infringement in a day than probably occurred in the record business from inception of the cylindrical disc to the inception of the Internet.  When the Roy Cohn of Silicon Valley tells you that Google just can’t tell a good guy from a bad guy, it just doesn’t have the ring of truth to it.  (This is, of course, a central issue in the extradition of Kim Dotcom, the former Google Adsense advertising client–who may tell some interesting Google stories if he ever sees the inside of a jail cell in the Eastern District of Virginia.)

But the question for the U.S. Congress is whether they are going to allow U.S. law to be stood on its head because Google just can’t manage to figure out whether hundreds of millions of “trouble tickets” on bad guys who avoid U.S. jurisdiction and who will never see the inside of a U.S. court should be given greater weight than the rights of American creators–while Google profits itself in the Pinto Gap.