19thDecember 2011

OneYearLater:Google’s Report CardonMaking Copyright WorkBetterOnline

InearlyDecember2010,Kent Walker, General Counsel at Google, issued ablogpostabout Google’s commitment to work on developingnew ways to makecopyright work betteronline Google posted an updateon its efforts in September. Below is anevaluation ofeach ofGoogle’sspecific commitments andanoverallgrade.

General Commitment

Promise: In that 2ndDecember2010 blog, Mr. Walkerstated:“Welookforward to furtherrefining and improvingour processes in ways that help both rights holdersand users.” In his 2ndSeptember 2011 post, he reiterated this commitment, notingthat Google “continue[s]to believethat makinghigh-value content available in authorised forms is a crucial part ofthe battle againstonlineinfringement.”

OverallGrade: INCOMPLETE.

WhileGoogle has takensome modest steps to deal with copyright infringement online, the promises madebyGoogle remainunfulfilled. Despiteits steps, thesimple fact is that Googlecontinues to both (i) receive financial benefits fromsites and applications that engagein piracyand (ii) placeartificial road blocks in rights holders’ efforts to protect their content online, contraryto theDMCA.

In testimonybeforeCongressearlierthisyear, Mr. Walker claimed that “Lastyearalone weinvested US$60 million in efforts to prevent violations of ourad policies.” Whilethat mayseem like alarge number, ithas to belooked at in relation to Google’s revenues.That sameyear (2010), Google had revenues of morethan US$29 billion, ofwhich morethan US$28 billion werederived from its advertising business. This “investment” in efforts to prevent violations represents only2/10thofapercent of their revenues. Not such abig investment, after all.

Webelieveitis reasonable to expect Google to domore, particularlyin those areas whereGoogle financiallybenefits fromthe activity. Other intermediaries in theInternetecosystem– such as payment processors,ISPs, and advertisingfirms –have allsteppedforwardto work constructivelyon voluntaryinitiatives to address rampant digital onlinetheft and encouragethe lawfulconsumption of creativeworks. Google,as the overwhelmingmarket leader in search and online advertising, hasaspecial responsibilityto lead andcreate asafe andsecureInternet experiencethat works forconsumers and the creative community.

Specific Commitments

  • Promise:Googlewill“act on reliable copyright takedown requestswithin 24 hours.”
  • Status: Morework needs to bedonebya companybuilt on its abilitytorespond to search requests within nanoseconds. Takedown times forpirate apps in the Android Marketplace, whileimproving, still takelongerthan 24 hours. Moreimportantly, Google still doesn’t adequately screenapps beforetheyareplaced in theAndroidMarketplace. This means Google, bytaking a “seeno evil”approach, receivesfinancial benefitsfrom thesepirate apps until such time as Google is notified and Googledecides to takethemdown. And even then Googlemakes moneyfrom these apps to the extent Googlecontinues its advertising or “Google wallet” relationship with those apps that have alreadybeen installed on devices. However, wedo note that Google has improved its takedown speeds forlinks to infringingfiles in search results andon hostedblogs to less than 24 hours.

As it wasn’t allthat long ago that Google requiredcontent owners to faxnotices of infringement to the company, this isclearlyan improvement. Butin the areaof pre-releasematerial in particular, the damagethat can bedonein seconds, let alonedays,cannot be overstated.

Moreover, this process isn’t meaningful when Googleallows its users to issue counternotices simplybychecking a few boxes on a form without havingaclear understandingofthe rights issues. Let us be clear -weagreethat users with legitimate claims to themusic at issue should be able to file counter notices. But we find it disturbingthat Googleadmonishes rights holders to ensuretheirclaim is valid and warns themaboutpenalties forfalse claims,but fails to hold the averageuserto similarstandards. Is that neutral,oris that tippingthe scales in a manner that benefits Google’s bottomline?

  • Promise:Google “willbuildtools to improvethe submission process to makeiteasierfor rights holders to submit DMCAtakedown requestsforGoogle products (starting with Blogger andweb search).”
  • Status: Rights holders remain unable to adequatelyaddress piracyon Blogger and web search through DMCA takedown requestsbecause thetools Google has builthavelimits on the number of submissions rights holders can submiteach dayand theydo not scale to thescopeof piracyonline.
  • Promise:Google “willprevent terms that are closelyassociated with piracyfrom appearinginAutocomplete.”
  • Status: Autocomplete stillsuggeststerms associated with piracywhen auseris searchingfora pieceof music oramovie. Forexample, when “ladygagamp3” is typed into thesearch bar, autocompletedirects a user to choose“ladygagamp3 free”or “ladygagamp3 download,” results that lead to illegal sites.WhileGoogle has removed a few terms associatedwith piracyfrom autocompleteduringaweb search, moreneeds tobedone.
  • Promise:Google “willimprove its AdSense anti-piracyreview.”
  • Status: Google,while makingsomeeffortsto remove infringingsites from its AdSense program, stillneeds to bemoreproactivein removingtheiradvertisingservices frompirate sites, and in doinginitial screenings of sites on which theyserve ads to ensuretheyaren’t pirate sites. In cases likethis whereGoogle receives financial benefits from the activityin question, itis incumbentupon Google toreviewsites on which itsserves ads beforeitplaces ads on itssites andto promptly take action oncenoticeisreceived that the site engages in infringing activity. For example, we weredisturbed to seethatappsremovedfrom theAndroid Marketplace forviolatingGoogle’s copyright policynonetheless continued to haveAdSense-served ads on them. Wehopethat this is being corrected. Andwequestion whyGooglehasn’t extended its copyright policycommitment to its other advertisingservices, such asAdWordsand DoubleClick – wethinkit should.
  • Promise:Google “will experiment to make authorised preview content more readilyaccessible in searchresults,” and start “lookingat ways to makeauthorised content easier to indexand find.”
  • Status: Google has persistentlyresisted requestsbythe musicindustrytoprioritisesites with authorised content over unauthorised sites. Wedon’t understand whyGoogle can’t takedelisting notices forasiteinto account in determiningrankings if ituses this information in its other copyright policyactivities. And while weacknowledgethat Google has launched MusicRich Snippets, Google did notmeaningfullyconsult with music experts in developingthetechnological specifications to identifymusic forthesepurposes.

So What CanGoogleDo to Improveits OverallGrade? Stop Making Money FromDigital Theft

Inaddition to the steps noted above, itwouldhelpif Googledid the following:

Stop Advertising onPirate Sites

Google should implement more reasonable, proactive steps to ensurethat its ad services(AdSense, AdMob, and DoubleClick) do not place ads onInternet sites or applications that engagein infringement. WhileGoogle is improvingits procedures toconsider infringement noticeinformation provided to it, Google should assurecompliancebysites andapplications with its termsofservicethat prohibit engagingin unlawful activity.

Stop Allowing Pirate Apps intheGoogleStore

1.Screening. Googleshould screen mobile applications, as Apple does, beforeallowingthem to bemade available in its Android Marketplace, toprevent pirate apps frombeingposted in thefirst place. Several of theseapps, such as MP3 MusicDownloader Pro, haveGoogle-servedads embedded in the application. Giventhe financial benefit thatGooglereceives from its Android app storeandsuchin-app advertising, it is incumbent upon Google to ensureitis not supportingillegitimate activity. Google should not turn ablind eyeto pirate apps,and then shift the burdento rights holders to identify them fortakedown,especiallywhen theydo noteffectivelyprohibit repeatinfringers (seebelow). Furthermore, Google hasadmitted that itdoes screen apps for Android compatibilitypurposes. Why won’t it do thesameto screenforillegal activity?

2.Apps Designed orKnown to BeUsed to Facilitate Infringement. Google should takeaction on mobile apps available inits storethat aredesignedto, or areknown to beused to, offer unlawful content. Instead, often Googleclaims it“doesn’tknow”that an app is used forinfringingactivity,even if public commentsabout the app– or even the app’s nameitself– refer to or encouragesuchuse. Google likewise argues that if an app theoreticallycan beusedforanynon-infringinguse,even if it facilitates infringement, it should be able to bemade available in Google’sstore. This failureto take down such apps, even after it has received noticeofsuchillegal activityand therehas been widespread discussion ofits use forillegalactivity, hasresulted in morethan tens of millions downloads of the known pirate application MP3 MusicDownloader Pro– and it’s still available on theAndroid Marketplacein newversions. This has a significant detrimental impact on the creators and owners of popularmusic, while providingarevenuestream forGoogle.

3.Stop Serving Ads or ProvidingGoogleWallet Services on Apps Removed from the Marketplace, and ifAppropriate, Terminate theDeveloper’s Account for theseServices. Google has stated that oneshould “follow themoney”with respect to the pirates. Yet,when Google removes an app from its Android Marketplaceforviolation ofits copyright policies, itdoesn’t necessarilystop providingGoogleAdSenseor Google Wallet services to instances of that app previouslydownloaded. Ifwe“follow themoney,”we find that Googlereceives moneyfrom servicingtheseapplications.

4.Repeat Infringers. Google should prohibitthepostingofapps fromdevelopers whorepeatedly havetheir apps taken down forviolation ofGoogle’s polices, and also forthose whose accounts have been terminated. Therearestrongindicators that thesamedeveloper, underthe same ordifferent account, is continuingtopost apps that facilitate infringement. It is disingenuous forGoogle to sayit is takingefforts to stopinfringing apps when itcontinues to permit developers to post in parallel, or subsequentlyrepost, virtuallythe same app that has been taken down without consequences.

Prioritise Legal Search Results First

Sites that engagein infringingactivityshould not appearas the first results when searchingforwhat entertainment content todownload or stream. This just leads to morepiracyand popularityof thesite. Rather, whether asiteisauthorised or unauthorised to make copyrightedworks available tothe public should beasignificant indicator in determiningrankingof theresult, with unauthorised sites having lower rankings thanauthorised sites.

Allow Copyright Holders to Search for Piracyina Meaningful Way

Googlecontinues to place artificialbarriers on copyright holders’ abilities to effectivelymonitor for search listings to sites that facilitate infringement,makingithard to deal with piracyat a scale commensurate with the scopeof theproblem. Forexample, Google has a limiton the numberof URLs that can besubmitted via web search that is significantlysmaller than the scopeof thepiracyproblem. Google should remove such barriers in its web search tools. Google should also provide tools oraccess to content ownersthat operateatthe same scale that Googleallows content to be added to their systems. If not, thenGoogle is condemningthecontent industryto fallfurther and further behind in dealing with infringing activity.

Prohibit ActivityonYouTube that Induces Infringement

Increasingly, music-oriented videos posted on YouTubeincludelinks to download the sound recording associated with the videoillegally. This is in violation ofYouTube’s ownpolicies. Inaddition, YouTubehosts videos explaininghow to “game”theContentID system and how to rip the audio content to create an MP3file from amusicvideo.

WhySo ManyComplaints?

Google should investigatewhyithas such ahighvolumeof complaints from copyright holders, and whether additional procedural or technical changes could be madeto assurelegal activity, thereby lessening complaints.

Stop theSelf-Serving Alarmist Rhetoric and EngageinConstructiveDialogue

Whileprofessingto agreethat copyright infringement is aserious problem that needs to be addressed, Googleraisesalarmist, self-serving criticismto anylegislativeproposal to deteror thwart rampant copyright infringement. Google should stop engagingin destructiverhetoric and come to the table with constructiveproposals to address this problem.