Increasingly, in the United States, the answer to that question seems to be yes. As Exhibit A, I offer this latest anecdote from Ellen Seidler at VoxIndie, who describes the experience of one indie film distributor who found an entire film uploaded to YouTube by some smug little snot with the handle Free Movies. The film distributor had used its ContentID account to “block uploads of certain lengths in its territories,” writes Seidler, but Free Movies decided that the distribtutor doesn’t have the right the block the film in any context whatsoever. Seidler describes the situation as follows:
“S/he [Free Movies] stated the reason as being: Approval from copyright Holder is not required. It is fair use under copyright Law. The user also added a note: ‘I don’t need to explain.’
Despite all the testimony at last week’s roundtable about fair use–and how copyright holders seek out [sic] to punish those who claim it using malicious takedowns–it’s worth pointing out, yet again, that for every legit “fair use” claim, there are also false, and rather malicious, abuses of that defense. It’s a fact conveniently overlooked by the anti-copyright apologists.”
YouTube restored access to the entire film (which would never ever be a fair use!), the distributor’s claim was then reinstated, and Seidler rightly points out that if Free Movies files a counter notice, that’s the end of it. These indie filmmakers don’t have the resources to files suit in federal court, so Free Movies and YouTube can not only get away with the infringement, they can even monetize it together—earning revenue from the labor of other people. Because freedom.
But if Google is going to support—and even encourage—this kind of behavior on its platforms, and if Congress isn’t going to fix the law to give rights holders a fighting chance, then let’s at least be honest about what this mess really is. Google should simply instruct its users to file responses and counter notices invoking the words hocus-pocus or swordfish or expelliarmus, and then these infringing files can remain on YouTube. Because fuck you.
Why bother even bringing up a complex legal doctrine like fair use? Clearly, Google’s intent is to ensure that users like Free Movies remain wholly illiterate about the principle; and the independent creators can’t afford to go to court anyway. I’ve argued in the past that fair use is not just an incantation that makes infringement claims go away, but maybe I’m wrong. Because Google is apparently above the law. So, if that’s the new reality, lets be honest about it and not add insult to ignorance by pretending a legal principle is even being applied in such a case.
As Exhibit B, Conor Risch, writing for Photo District News, describes Google as “too big to sue,” even for a relatively large rights holder like Getty Images. Ever since Google changed its Image Search format, Getty—the largest stock-photo library representing thousands of photographers around the world—has seen dramatic loss of traffic to its own pages. Traffic that Google has effectively hijacked.
Prior to the 2013 change, Google Image Search results produced thumbnails of most photos, and when a user clicked on an individual image, he was directed the to the web page hosting that image. But never content simply to “organize the world’s information,” Google likes to own the world’s attention in order to drive ad revenue and mine data. So, in 2013, they changed Image Search to provide larger, high-quality images that do not link directly to the owner’s web pages. Instead added a “Go To Web Page” button, and this additional step combined with posting high-quality images has resulted in a sharp decline in traffic to Getty’s site.
As has recently been reported, Getty is pursuing Google in the EU, where the search giant faces an ongoing and wide-ranging anti-trust investigation. Getty views Google’s Image Search practices as implicating both copyright and anti-trust law, but even though both companies are based in the US, Getty’s avenues for relief domestically are presently very narrow. After extensive investigation into the practices of the search giant, the US Federal Trade Commission voted unanimously in 2012 not to pursue Google. This is in dramatic contrast to the European Commission, which may be about to impose a record-breaking fine on Google for “anti-competitive search practices,” reports Andrew Orlowski for The Register. With regard to bringing a copyright infringement claim against Google, Getty’s General Counsel Yoko Miyashita states, the search giant would simply “wipe us out from a cash perspective” by dragging out the case for years.
Where the copyright and anti-trust issues converge is when the company that is too big to sue is also the company that is too big to ignore. As Miyashita explains in the Risch article, “Are there copyright issues? Yes. But the problem is not just copyright. It’s their market dominance and their position in search where they can circumvent any of the copyright protections that legislatures or courts may provide.”
By way of example, Miyashita cites legislation passed in Germany and Spain that was designed to protect news publishers in those countries by requiring compensation for Google’s use of news snippets. Google’s response? De-indexing those publications from its search engine—a practice that Google’s own spokespeople and attorneys will typically claim “chills free speech” whenever a plaintiff seeks an injunction to de-index links or sites that are clearly infringing intellectual property or violating privacy. The same company that will insist that access to the web is a universal and inviolable civil right will gladly remove entities from its near-monopoly search engine when it has a buisness interest in doing so.
Technically, even under the DMCA as it is written, the above-mentioned FreeMovies is supposed to lose his/her YouTube account as a repeat infringer. But no. Such a remedy is labeled as “censorship” by Google and its Kool-Aid drinking buddies at EFF, et al. But it’s okay to remove news organizations from search when it serves Google’s bottom line. Again, if this is how things are, if Google is simply above the law, then let’s abandon the nuanced language of law altogether. Let’s just say it’s Google’s internet and they can do whatever the hell they want with it.