Is Google simply above the law?

Google Shell GameIncreasingly, 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.

© 2016, David Newhoff. All rights reserved.

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  • To paraphrase William Golding “we should sharpen a stick at both ends!”

  • The problem with Google goes far beyond Copyright and abuse of artists’ rights. Google has a corporate culture that believes they are above the law. Our government, under Obama, has willfully allowed this to happen, unabated for so long it is becoming increasingly difficult to rein them in.

    Fortunately, the Europeans are seeing the abuse from a foreign monopoly sucking money out of their economy and are pushing back hard on Google and Amazon.

    I know one of the driving factors for my time and energy working in this area is a belief that if we don’t stop Google with the power of the greatest communicators in the world, authors, filmmakers, musicians, photographers, etc., we will not be able to stop them.

    The stakes are incredibly high in this battle for artists’ rights and goes far beyond restoring copyright to it’s intended safeguard for protecting workers rights..

  • Sam Flintlock

    As someone who was heavily involved in the anti capitalist movement of the early 90’s, part of me wants to go “we did try and tell people this was going to happen”. I accept that’s not productive and a bit churlish.

    On the specifics, as you know I’ve got strong opinions on false DMCA takedowns. But that works both ways. I see no reason why users like “Free Movies” shouldn’t be hammered for these kind of false counternotices either. I think malice is the most likely explanation. If it’s not that, it’s ignorance so severe that it still shouldn’t act as a defense.

    But, obviously, they’re small fry compared to Google.

    One thing I would suggest is that you need to look at TTIP again. I know you’ve written on it a bit, but if it goes through, the current situation could end up looking like a mere appetiser for abuse of corporate power. Specifically, look at Investor-State Dispute Settlements. Under those, Google would be able to sue governments like Germany and Spain who’ve passed legislation that hits their profits. It’s a very dangerous proposal. I’d go as far to say it’s the issue of the decade.

    The other thing that is needed is for anti Google forces to start coordinating more. I’m thinking of linkups between artists who are anti Google and things like the anti gentrification protestors demonstrating against the Google buses. I could be wrong on this, because I’m obviously not on the ground in the US. But from what I can see those kind of contacts aren’t really being made yet. And Google are too big to fight piecemeal.

    • David Newhoff

      Hi, Sam. Always good to have your input. Indeed, the Investor-State Dispute issue is concerning vis-a-vis the broad story of corporate control in the world, and I admit that I have not dug deeply into this matter. In fact, I don’t think I’ve commented on the TTIP at all but have only commented on the mischaracterizations of the IP provisions in the TPP. Certainly, I’ve encountered concerns about the Investor-State issue, but some yellow flags do go up for me. For instance, I’m quite confident that ratification of the TTIP in the US will not grant new powers to corporations to sue in the US government for passing or enforcing laws that might “cut into their profits.” That just doesn’t square with US law, and I am skeptical that it squares with domestic law in the nations that would be signatories to the agreement. Unfortunately, in order to really understand a trade agreement, one must have an above-average knowledge of the laws, economies, and cultures of all of the trading partners, which is why the reporting on the TTIP is something I take with a grain of salt, whether it’s pro or con. Still, I wouldn’t dismiss the concern at all.

      Regardless, we are certainly talking about an extraordinary amount of corporate power, and of course the Sanders campaign (and in a weird way the Trump campaign) is a reaction to growing corporate power in this country. Thus far, most of the anger is focused on Wall Street, which is both fair an overly generalized. I think the bloom is coming off the rose that Google represents the progressive ideals of early Silicon Valley, but I don’t think millions of people have yet come to consider how pervasive and toxic the company can be. This is partly because an assault on Google is translated into an assault on the Internet itself. Increasingly, though, more and more brand names in the arts communities are publicly repeating the relevant themes, and they are making connections with one another. Coordination is a whole other matter, of course. Usually, one needs a single organization like the EFF to pull that off. “Our side” has organizations, but they’re a little more disparate and not as well funded as the one’s promoting Google’s agenda.

  • The problem is that people segregate themselves into their own little tribes (in this and in general). Rather than be ‘anti-google’ we just need a ‘pro-fairness’ group…

    We need to be –humans– first, BEFORE whatever arbitrary isolated division of said.

    People seek comfort in reinforcing like-minded nonsense. We’ve come such a long way technologically…. and yet, emotionally/psychologically we are little more that cavemen; grunting and howling at the moon…
    I have little hope in mankind at the moment.. greed prevails, egos are fluffed and stroked, and common sense doesn’t exist. Please prove me wrong…

  • The only remedy that might have a chance is some kind of class action to force Google to become like ASCAP or BMI whereby it pays creators for directing traffic to their material. That way, it won’t matter if some sniveling little shit like “Free Movies’ posts up your movie…you still get paid. I’m sure there are holes in this idea, but at this point we have to realize that the good old days are gone and they aren’t coming back.

    • Google is setting themselves up for a class action. Sadly it will have to initiate from a European country as they own the US congress… what “democracy” ? that left here a long time ago.. if it ever existed at all…

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