On Monday, Google was granted a preliminary injunction in a lawsuit aimed to stop the investigation of the search giant by Mississippi Attorney General Jim Hood. Thanks in part to leaked information from the computer hacking of Sony Pictures late last year, Google has attempted in the court of public opinion to portray Hood’s investigation as a movie-industry-backed witch hunt, despite the fact that the scope of Hood’s investigation is neither unprecedented nor lists copyright infringement anywhere near the top of the AG’s concerns.
In fact, at the very top of that list is whether or not Google is complying with a legally-binding, non-prosecution settlement entered into with the federal government in 2011 regarding the company’s knowingly advertising against traffic driven by illegal pharmaceutical transactions. Settled for a whopping half-billion dollars to keep executives from facing possible criminal charges in that case, the question of whether or not Google has been complying with the terms of the settlement (i.e. has stopped profiting from illegal pharmaceutical traffic) sounds to me like a matter that’s in the public interest; and this type of due-diligence by AG Hood is in no way unprecedented. This is not to say that copyright holders do not have an interest in Hood’s investigation given that copyright infringement by Google is part of the scope.
Of course, in the court of law (not public opinion), Google’s suit aimed at stopping Hood’s investigation is predicated on safe harbors provided for website owners in the Communications Decency Act of 1996. In this post, I suggested that the over-broad application of safe harbors becomes a hyperextension of the “I didn’t know” defense, and is particularly bizarre when applied to companies that own technology designed specifically to know a great deal. If the court finds that the AG’s investigation cannot move forward based on safe harbors in the 1996 law, this will further congeal both a legal and cultural bias that anything goes as long as it happens online. That would certainly be a win for the major Internet companies, but in case after case, we see evidence as to why it would not be a win for the public.
By way of example of the world in which we now live, Silk Road founder and owner Ross Ulbricht was convicted in early February, though his defense was in part based on safe harbors in the the Communications Decency Act. But, do a Google search for “Silk Road” right now, and Item #3 will be a link to silkroaddrugs.org, which ostensibly provides guidance to new anonymous marketplaces for illegal narcotics. In fact, the entire first page doesn’t even list one recent article reporting on the outcome of the case against Ulbricht. Y’know, because the Internet is all about the most useful and most relevant information — that is if you go hunting for it behind whatever manipulated algorithmic logic a search company has decided to prioritize.
Note: Silk Road’s market trafficked in illegal narcotics while Google’s settlement was regarding illegal transactions for prescription pharmaceuticals.
A story reported yesterday on CNN Money reveals a new perspective on the whole “Aw shucks, we didn’t know” defense by companies like Google — and it’s the B2B perspective. Because when money comes into the equation between advertiser and media company, bullshit doesn’t work quite so well. Imagine you’re Anheuser-Busch, one of the most American of all brands, the company whose iconic Budweiser Clydesdales were filmed standing in Liberty State Park bowing their heads at the empty patch of Manhattan skyline where the Twin Towers once stood. Now, imagine your brand is being advertised on YouTube against ISIS recruiting videos. Do you see a problem? Set aside public opinion and the courts for a moment, because when major advertisers say, “You better be able to control where our ads appear,” Google will suddenly find it within its power to know far more than it often pretends it can know. The CNN article quotes a Google spokesperson thus: “We also have stringent advertising guidelines, and work to prevent ads appearing against any video, channel or page once we determine that the content is not appropriate for our advertising partner.” And that’s great, but then if Google can actually achieve this goal, can the company not reasonably know other things, like whether or not it is engaged in any of the illegal activities being investigated by an attorney general?
© 2015, David Newhoff. All rights reserved.