Google and YouTube have managed to create a scam that has gone both largely undetected and largely unpunished for a decade–illicit activity that can be both seen and quantified through the sale of advertising and is also unseen and unquantified through data scraping in the background.  (I leave it to you to speculate which is more valuable.)

It is rare for Google to get caught like they were with the massive multi-agency sting operation and grand jury investigation by the then-U.S. Attorney for Rhode Island that led to the $500,000,000 punishment and non prosecution agreement in 2011.  (Which led to a very expensive shareholder lawsuit against Google’s board of directors and bizarre settlement.  We’ll come back to the board of directors issue here.)

If you had to put your finger on a moment in time that Google began buying Washington in earnest, it was this sting.  It was also the closest that Larry Page ever came to going to prison with all its earthly delights.  That evidently got his attention.

Google has also faced down civil RICO claims for racketeering through the theft of intellectual property.  The last reported RICO case against Google offers a checklist for how to make a civil RICO claim stick against the Leviathan of Mountain View.  I like the YouTube case a lot better than the inventor’s case they beat back.

But most of the time Google just keeps the money when they get caught.  A prime example is YouTube’s standard practice of refusing to pay a revenue share retroactively after you catch them infringing your work using Content ID.  That unjust enrichment creates an incentive to sharply limit the number of artists or songwriters who get access to Content ID in the first place.  I think this is why Google massively overreacted to Mississippi Attorney General Jim Hood’s Civil Investigate Demand and subpoena that they never did respond to.  Maybe they were covering up the same crimes that got them prosecuted in Rhode Island and they did not want to go through that again.

And therein lies the rub and our topic today:  If Google never gets caught, Google quietly keeps all the money.   For our world, this happens because they’ve artificially limited the tools that independent creators can use to catch the massive infringements.  And even if the majors and a handful of independents get the Content ID tool, YouTube still has the incentive to make Content ID just good enough that they can say it works, but not so good as to actually stop the infringement before it starts.

The majors using Content ID have to employ still other means to catch them, sometimes manually, at great cost.  In fact, you have to wonder if net-net the total costs of administering the YouTube deals actually exceeds the minimum guarantee and royalty payable.  Those tools are simply beyond the reach of the creators, even the few who YouTube grants access to Content ID.

And of course, any user of Content ID (big or small) has to sign up to the take-it or leave-it shakedown deal that limits what you can do about it when you catch them.  Which is just another form of the protection rackets.

This criminal enterprise comes in two flavors (at least):  Ad sales for illegal products (like the drugs, counterfeit tickets and the like), and selling legitimate advertising around content that Google knows or should have known was illegal (like YouTube’s monetization of infringing works).  And, of course, Google scrapes data in the background on all these criminal activities to its great–and secret–profit.

As we saw with the drugs case, Google knew exactly what it was doing, and I’m not willing to believe their rudderless ad sales teams don’t also know exactly what they are doing (remember they gave credit terms to infringers and the drugs sting operation shows that they ideated many criminal dodges to deceive their own best practices).

What little evidence we can lay hands on in open source demonstrates that Google must know very well that it engages in criminal behavior–why else was Eric Schmidt advised by then-counsel David Drummond to refuse to answer Senator John Cornyn’s questions regarding the drugs case when Schmidt testified before the Senate Antitrust Subcommittee?  After engaging in a weak attempt at misdirection.  Did they think this question wouldn’t come up so didn’t prepare for it?  I doubt that very much.  (If they cooked up this story without the lawyers, this might well have been a conspiracy.  Attorneys take note:  Crime/fraud execution?)

Now that the U.S. Senate is investigating the effectiveness of the safe harbors under DMCA, this would be a good time for the Department of Justice to investigate Google’s business practices and potential criminal activities.  Smells like RICO to me.

As independent composer (and MTP guest poster) Kerry Muzzey highlighted in his recent testimony before the United States Senate regarding Content ID:

My name is Kerry Muzzey, and I am a film and television and modern classical composer.

I am one of the very few independent artists who has access to YouTube’s Content ID system; and most of my experience with notice and takedown has been on YouTube. Content ID has become a core piece of my licensing business: it is the x-ray that reveals the theft of my music to me. This is why I am also nervous about speaking out today – because I fear retaliation by YouTube and Google. I am concerned that they may take Content ID away from me for raising my concerns publicly. The technology behind Content ID is nothing short of brilliant, and I don’t want to lose access to it.

Growing up, my mom always said: “You’re not allowed to complain unless you’re gonna do something about it.” Senators, my being here today is my “doing something about it.” Today, I have the most unique opportunity I have ever had in my lifetime. I have the opportunity to ask Members of my United States Senate to fix a broken law.

Let’s also not forget the way Google is governed (as is Facebook, Spotify and many others).   Larry Page, Sergei Brin and Eric Schmidt hold a special class of  “supervoting” shares, what SEC Commissioner Robert Jackson has called “corporate royalty”.

These insiders get 10 votes for every one share they own of a special class of supervoting stock.  This means that the insiders control over 60% of the voting stock and win all shareholder votes—including votes to appoint the board of directors.

Supervoting shares give insiders absolute control of Google–one of the most successful public companies in commercial history.  Because they control every aspect of Google’s operations, Google truly is their “alter ego.”  One purpose of Google’s lobbying spend must be to keep the corporate royalty out of prison.

These supervoting Google Class B shares are not available to the public.  The public can buy two classes of stock:  GOOGL shares are Class A (one vote per share) and GOOG shares are Class C (no votes per share).  (GOOG shares were issued in a dividend to GOOGL holders.)  GOOGL shares typically trade slightly higher than GOOG which may demonstrate that the market has priced in a lack of meaningful voting rights in GOOGL.

It should not be surprising that Google shareholder meetings are a one-way communication event. The supervoting corporate royalty tell the other shareholders how things are going to be and vote down any move by GOOGL holders to change the status quo—like converting supervoting shares into one share one vote.  As Floyd Norris reported in his New York Times “Economix” column, “Rarely has a shareholder vote been less suspenseful.”

So Google’s profit from evil is not an accident.  If Congress wants to fix the DMCA, let’s fix all of it.  And as U.S. Attorney Peter Neronha discovered ten years ago, that requires a grand jury.