Category: Law & Policy

Is Google Buying Policy Through Academia?

Image by nicholashan

This week, the Wall Street Journal reports that Google has been funding academic research papers worldwide and, unsurprisingly, the conclusions in these papers tend to support Google’s policy interests.  This is familiar territory of course. Most obviously, we remember that Big Tobacco funded all manner of “research” that produced alternative facts about the health hazards of smoking. This is not to say that every author or study implicated in this story represents poor scholarship, or a quid-pro-quo scenario; but the sheer volume alone likely has a considerable effect on policy.

Perhaps the most significant question to consider is this: What happens when the industry that bankrolls self-interested academia happens to be in the information business?  Because not only does Google have the financial resources to fund millions of dollars worth of studies, but they also own the most pervasive platform we use to find information.  So, what are the odds a citizen will yield Google search results linking to news articles that cite Google-funded studies that support Google’s policy views? Maybe a little too likely.

In fact, The WSJ cites a report conducted by the Campaign for Accountability, which identified over 300 papers, published between 2005 and 2017, on the issues of anti-trust, intellectual property, and general regulatory policy. “The 329 Google-funded articles that we identified were cited nearly 6,000 times in more than 4,700 unique articles,” according to the report summary. “Overall, our analysis suggests that Google is using its sponsorship of academic research, not to advance knowledge and understanding, but as an extension of its public relations and influence machine.”

To be sure, the report pulls no punches, calling Google’s capacity to influence policy through academia “pernicious.”  “The number of Google-funded studies tended to spike during moments when its business model came under threat from regulators—or when the company had opportunities to push for regulations on its competitors,” write the authors.  The CFA report further states that the majority of the views in these papers are consistent with Google’s policy interests and that two-thirds of the studies did not disclose that Google had been a source, or the source, of funding.

Of the total number of papers listed, roughly one third (114) address the subject of copyright; and several of the authors—Ammori, Band, Springman, Urban, Lemley, Heald—have been consistently cited by anti-copyright bloggers, organizations, and the mainstream press, in articles promoting the general message that copyright is outdated, broken, draconian, or just plain wrong for the digital age. Still, it would not be fair to many of the authors of these papers to conclude from this report that every name on it is a so-called Google shill.  In fact, that’s exactly the kind of ad hominem generalization employed by the anti-copyright crowd all the time, and it’s not a reasonable response.

This point brings to mind one example of how effective this academic funding can be, and I refer back to March of 2016 and the request for public comments to the USCO regarding possible revision to Section 512 of the DMCA.  In the final weeks leading up to the April 1 deadline, stories broke in both the blogosphere and in the mainstream press with headlines announcing that “30% of all DMCA takedown requests are questionable.”

The source of those headlines was a study (listed among CFA’s 329) from Berkley and Columbia, co-authored by the above-named Jennifer Urban.  In fairness to Urban (who is very nice) and her colleagues, that study did not actually say what the careless reporting claimed it said. As discussed in detail in this post, the study did not support anything close to justifying the provocative 30% headlines that had gone viral. In fact, readers can see that when Urban herself wrote a few very cordial comments in response to that post, she did not really take issue with the overall thesis that the press and bloggers had misrepresented her study’s conclusions.

As a result of that study, though, reporters wrote stories based on the following logic:  the big rights holders send tens of millions of automated takedown notices; this new study says 30% of notices are questionable; the major rights holders must be sending millions of questionable notices; therefore, the major rights holders must be stifling a lot of speech.  Except the report itself doesn’t support that narrative at all, and one cannot accuse its authors of making such a claim—because they absolutely did not.  In fact, notices sent by major rights holders were not even part of that study’s data set.

But this one example of one study did produce some very effective—and innacurate—headlines that were probably rather helpful to Google’s interests leading up to the USCO’s hearings on Section 512. Odds are, most tech and copyright reporters didn’t read the whole report (and certainly didn’t try to unpack it’s findings); so by the time their misleading conclusions became tweets and other blurbs, a biased narrative about the DMCA was being repeated that even the report itself, in some areas, contradicts.

I chose this example specifically to illustrate that authors of a report, even while industry-funded, may still apply reasonable academic rigor and simultaneously produce results that can be very useful to the funding industry—especially when conclusions are taken out of context.  The extent to which the authors of a particular report can be blamed for finding the results their funding industry is looking for can only be considered on a case-by-case basis. Usually, the scholarship, or lack thereof, speaks for itself; but this demands that the people who do the reporting about the reports actually read them and try to understand them.  And in the digital market, ain’t nobody got time for that.

So, ultimately, the smoking gun in this particular story may be one of volume.  The company or industry that can afford to fund a lot of academic studies will invariably yield the most results favorable to its interests. Some will be, as the CFA says, “…little more than thinly veiled opinion articles dressed-up as academic papers, outlining the beliefs of an author on Google’s payroll with little or no supporting evidence.”  But even if all 114 papers mentioned were thoughtfully critical of specific areas of copyright law, and then supported 2,000 half-baked articles that in-turn generated 20 million tweets, it stands to reason that, in this grand game of Telephone we’re playing, the general public winds up getting the gist of exactly what Google wants them to believe.

Turkewitz: Why Equustek Decision is Good for Freedom

Neil Turkewitz, Senior Policy Counsel at the International Center for Law & Economics asserts that critics of the Canadian Supreme Court decision in Equustek v Google are overlooking the case itself in favor of spinning hyperbole.  Turkewitz sees the specifics of the ruling as a model for good governance and the protection of sovereignty and civil liberties, even on the web.

“EFF subverts the reasoning of the decision and thus camouflages its true import, all for the sake of furthering its apparently limitless crusade against all forms of intellectual property. The ruling can be read as an attack on expression only if one ascribes to the distribution of infringing products the status of protected expression — so that’s what EFF does. But distribution of infringing products is not protected expression.”  Read full post here.

Equustek Decision Has Nothing to Do With Speech

Digital World Map

Digital World MapImage by beebright

There. Did you feel that? A tremor in the First Amendment? Somewhere in cyberspace, a website has died, taking with it a tiny Yop of free speech. You can hardly be blamed for missing it against the sound of trillions of other Yops. But it happened and it will happen again. There. It just happened again. Do you feel less free now? Or are you comforted by the arrival of even more Yops to fill the void? Or do you realize that the right of free speech is not quantifiable?

In the slaughter-bench years of Web 1.0, the average website lasted just 44 days. There were about 3,000 active websites in 1994. By 2014, the web had grown by 33-million percent to nearly a billion websites, and there is a ceaseless fluctuation of active vs. inactive sites in any given month. But to hear some of the tech pundits and “digital rights” activists talk, one might get the idea that we are metaphysically 33-million percent more free today than we were 20 years ago—and that this gain must be protected at all costs. That every site is sacred.

When websites die, it’s usually from natural causes like business failure or loss of interest; but every once in a while, sites are ordered shut down or to be de-indexed by state actors because they facilitate some kind of illegal trade. And we’re just going to have to get comfortable with this idea because we now live in a time when a criminal operating in one part of the world can do tremendous harm to an individual or organization—or a whole nation—based thousands of miles away.

To meaningfully address this challenge we must abandon the misplaced idealism that the internet is inherently a benevolent place where civil liberties like free speech thrive on the principles of self-governance. This is a naive premise for any society—civil liberty has always required the rule of law—but apropos my last post about Packingham, this absolutist view of speech is also illusory because it overlooks the fact that corporations like Google and Facebook make decisions to hide, delete, emphasize, or organize speech all the time.

One group of websites that is allegedly doing harm across borders belongs to Datalink, a defendant against plaintiff Equustek in a major Canadian intellectual property litigation. I wrote about this case in detail in 2015, but the synopsis is that Datalink allegedly stole proprietary technology belonging to Equustek and began selling it as their own. When an enterprise is based on theft of trade-secrets (i.e. a counterfeit operation), the web provides easy opportunities to poach potential customers from the rightful supplier by building multiple websites, employing SEO, entering keywords, etc. And that’s exactly what Datalink is doing—redirecting Equustek’s prospective customers to its sites to sell products that allegedly infringe Equustek’s IP in the first place.

Pending trial, Equustek was granted injunctive relief by a Canadian court in the form of an order that Google de-index links to Datalink’s sites, not only for Google Canada but for search results worldwide. Google appealed the order, and last week, the Canadian Supreme Court upheld the lower court’s decision. What is most significant about this ruling is that the order addresses whole sites rather than individual pages, and it applies globally. The Court explained the common-sense rationale for the decision thus:

“Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates—globally.”

As usual, Google, the EFF, and others have claimed that this decision would chill speech, still evangelizing the idea that all activity—even illegal activity—must be considered speech when it is conveyed via the web. This dysfunctional, cybernetic theology must be abandoned if we are going to insist that our own technologies serve, rather than destroy, civil society. As the Court replied in this case,“We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods.” If we cannot accept at face value the simple logic that counterfeiting is not speech, then we are rapidly battering the First Amendment into a meaningless doctrine.

The relative ease with which any counterfeiter can hijack online traffic can put consumers at risk as well as legitimate suppliers, so Equustek has tangible implications beyond the high-level legal theories and principles being debated. A while back, I saw a post on the IATSE Facebook feed warning professionals who rig lights and sets about counterfeit shackles on the market. It’s a tiny object that, if it fails, can kill someone; and rational policy has to account for the fact that the internet creates unprecedented opportunities for substandard and counterfeit products to enter the supply chain. Multiply this example across any number of products, from food to firearms, and the potential results are neither theoretical nor have anything to do with free speech.

And as if on cue, NBC reported two days ago that a raid in the Philippines against a hacker organization called Avion turned up further evidence indicating that the owners of Backpage were taking an active role in facilitating the sex trade brokered through its site—including possible links to human trafficking. Readers may remember that the EFF has staunchly defended Backpage’s status as a neutral site protected by Section 230 of the Communications Decency Act, which I will argue is part of the same ideological dysfunction. I would not go so far as to accuse the EFF of defending child pornography and human trafficking; I don’t think they’re bad people in that organization. But I will accuse them of cultural capture—of taking such an absolutist view of these liability shields for service providers that they seem to make no exception for site owners who use the web to commit some very serious crimes.

As stated in a few posts, 2017 seems to be the year when private individuals, corporations, and legal authorities are finally calling bullshit on the internet industry’s exaggerated policy of non-intervention when it comes to mitigating harm. In the meantime, it is both illogical and ahistorical to suggest that the right of speech cannot tolerate a court order, which temporarily enjoins a non-party (Google) from facilitating harm being done to a plaintiff. I mean, did you feel it? Yeah, me either.

See also:  Hugh Stephens Blog & Stephen Carlisle Blog