Yesterday, Google chairman Eric Schmidt was interviewed on public radio and simulcast on Google Hangouts. WAMU’s Diane Rhem threw softballs, slow and over the plate at Schmidt, providing a friendly platform for the chairman to evangelize the many ways Google makes the world a better place. Coincidentally, I happened to be editing the following:
For those who don’t know, ChillingEffects.org is a database and website managed by the Electronic Frontier Foundation and The Berkman Center for Internet & Society. It is a presumptive watchdog over the presumptive misuse of DMCA takedown notices — the implication being that free expression is “chilled” whenever such an abuse takes place. In principle, this might seem like a reasonable thing for the EFF to oversee; after all, we don’t want free speech to get chilly, even if there is diminishing hope that speech is necessarily getting anymore valuable in the digital age. But it turns out that whenever, say, Google receives a DMCA takedown notice for a link to infringing material, every one of these complaints is sent to ChillingEffects so that users are, in principle anyway, able to read the details of the complaint from the notice sender. So for example, if you were to search the term “Expendables III,” which was weeks ago leaked before its theatrical release, you would find among the search results a notice from Google that reads as follows:
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org.
In many cases, the link to the complaint will not provide the user with much information, and it’s a bit of a mystery what most users might do with the information anyway. After all, if you’re the creator of a file like a YouTube video that is taken down by a rights holder, you can have access to the information needed to rectify the fault, if indeed it was a false claim. What’s truly obnoxious about this notice, and even the name ChillingEffects itself, is the not-very-subtle implication that DMCA takedowns are by default abusive and generally chill free expression. Ya see what they did there? And by they, I mean Google, which funds ChillingEffects to no one’s surprise I’m sure. Now, enter the Hollywood hacked photo scandal and a twist on that story that, as Eriq Gardner recently wrote for The Hollywood Reporter, “might reveal something about Google’s policies toward flagged copyrighted content.”
What Garder is referring to is the fact that former Kate Upton beau, Detroit Tigers pitcher Justin Verlander, delivered via his attorneys takedown notices identifying 461 URLs that were hosting racy photos of him and Upton. Of those URLs, Google removed links to 51%, drawing a distinction, according to Gardner, between nude photos and racy-but-clothed photos, irrespective of the fact that all of the photos in question were indeed stolen and are being published without permission. Never ones to lose an opportunity to be complete tossers about copyright, Google is supposedly relying on an untested legal theory that the copyright holder of a selfie can only be the button pusher at the time of the taking. This seems hardly relevant with regard to the matter of just acting like decent human beings; if images are known to be stolen, and the subject(s) of those images request that your for-profit search business remove links to them, you ought to do it on principle alone. But this is not the mindset of the web industry despite its many self-aggrandizing proclamations as the engineers of social change for good.
Google seems to be concerned with a much higher principle than invading the privacy of a baseball star, a supermodel, or frankly you or me, and that’s the principle of doing whatever the hell it wants without consequences. I think Gardner is right and that Google would love nothing more than a court case to affirm its position that these photos, though acquired illegally, are not the intellectual property of Mr. Verlander and that he, therefore, has no right to request their removal under DMCA. This could even prove to be technically accurate; the copyright owner of a photo is the individual who exercises sufficient creative control (not the button pusher), so these images could still be the intellectual property of Miss Upton if indeed they were hacked from her account. But that doesn’t mean Google isn’t benefitting from traffic driven by a prurient interest in seeing photos that were stolen and believed to be secure by their owners. And Gardner also raises a valid point about ChillingEffects when he writes, “Google has in effect provided a road map for any voyeur looking for sites that refuse to remove stolen photos.”
All of this falls within the scope of the broad agenda maintained and well-funded by the Internet industry to foster a policy of “anything goes.” As long as we allow them to gloss over privacy invasions, infringements on intellectual property, and profiting from social harm in the name of free speech, we only end up harming free speech in the long run.