Tag: google

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.

Google Down-Ranks Real News

Photo by enriscapes

As alluded to in yesterday’s post, the 2016 shock to what we might politely call political orthodoxy provided a boost to mainstream news subscriptions. “The [New York Times] added 276,000 net digital-only subscriptions in the final three months of 2016, the best showing since it implemented its paywall in 2011. In the weeks immediately following Mr. Trump’s election in November, subscriptions increased tenfold compared with the previous year,” wrote Shannon Bond for Financial Times in February.  Similar spikes occurred at The Washington Post and other traditional news sources. So, if nothing else, the bizarre theater of obfuscation and Twitter rants coming out of the new administration seemed at least to rekindle millions of Americans’ desire for credible reportage.

But get this…

Gerry Smith for Bloomberg reports that when The Wall Street Journal blocked Google users from reading its articles for free, its subscription business “soared” only to see this gain countered by a 44% drop in traffic from Google search.  It turns out, according to Smith, that Google’s algorithm prioritizes free content over paid content.  Assuming this is true, there’s a whole lot wrong with it, beginning with the fact that this belies Google’s boastful raison d’etre to “organize the world’s information” and deliver search results based on quality and relevance.

If the algorithm looks for free content first, this suggests that fake news and other junk content will be consistently prioritized over the WSJ, The New York Times, The Washington Post, The Daily Beast, and so on. Not only does Google’s policy in this case stifle these organizations’ flexibility to choose their own strategies for financial survival, but for the general public, it exacerbates the already toxic brew of bad information that is, at this point, literally threatening democracy itself.  And for what?

Money of course.  Google makes money by serving ads to content that users can more readily access without going through paywalls.  Consequently, ConspiracyIdiots.com makes it into the top results instead of, y’know, news—at least according to what Bloomberg is reporting. “The Journal’s experience could have implications across the news industry, where publishers are relying more on convincing readers to pay for their articles because tech giants like Google and Facebook are vacuuming up the lion’s share of online advertising,” writes Smith.

I’ve gone so far as to assert that we’ve actually lost the “information revolution.” The promise of a more enlightened society through digital technology has hardly been fulfilled, but we do have some very funny memes to stick on the fridge of history.  Given the extent to which the current narrative has been hijacked by a strange confluence of bored trolls and professional data manipulators, a sane person can be forgiven for deciding that it’s about time to unplug.  A recent report by the Data & Society Research Institute on the influence of—I guess we can call it “troll culture”—on even the mainstream media says the following:

“Mass media has greatly profited off the appeal of conspiracy theories despite their potential for harm. Network news channels feature ‘documentaries’ investigating theories without fully refuting them. In 2011, when Donald Trump began promoting the “Birther” conspiracy theory, claiming President Obama was born outside of the United States, mainstream news outlets like CNN and Fox News covered these claims extensively. Out of this environment, an entire industry of conspiracy and fringe theory has emerged.”

The report delves into the intricate network of internet subcultures described as “an amalgam of conspiracy theorists, techno-libertarians, white nationalists, Men’s Rights advocates, trolls, anti-feminists, anti-immigration activists, and bored young people,” who are directly influencing the narrative that many citizens around the world think of as the truth.  And this is bad enough.  “Google says its ‘first click free’ policy is good for both consumers and publishers. People want to get the news quickly and don’t want to immediately encounter a paywall,” writes Smith.

Sound familiar?  What’s good for Google is invariably “good for consumers.” And consumers invariably buy the pitch for a while.  Free?  Yeah, free sounds good.  Until it turns out that free actually a cost. Sometimes a very dire cost—like millions of voters who would sooner believe in alien abduction than climate science. And the point of the above quote about television news creating entertainment out of nonsense is that sensationalism will be the only thing left, if business models no longer support investigation, travel, research, fact checking, and other expensive human labor required to deliver quality journalism.  Add to all this that Google search will apparently down-rank legitimate news because it isn’t free?  Damn.

Does Google Claim Some Invalid Copyrights?

Photo by Harrisr

I assume it’s well understood by now that the biggest, corporate antagonist to intellectual property rights is Google. The company has backed an impressive array of academia, press, lobbying, and activism, all generally evangelizing the message worldwide that IP is fundamentally anachronistic in the digital age.  In response to this juggernaut, many a pro-IP advocate likes to underscore the hypocrisy that, despite all their PR on this issue, Google is no less a vigilant steward of its own intellectual property.  A favorite refrain, for instance, is the observation that the company isn’t about to “share” its proprietary, patented search algorithm even while its spokespeople continue to promote “openness” and other crunchy values.

I don’t personally begrudge Google protecting its intellectual property; I think they should.  But it’s hard not to get a bit heated when the assorted pundits, who either directly or indirectly help promote Google’s interests, take so much pleasure in displaying anecdotal evidence of alleged copyright abuse and overreach as though this problem is so rampant that we’re all just one litigation away from losing our right to use the internet.  But what if Google itself is making some dubious claims of copyright in some of its most widely-used works?

The next time you’re using Google Maps, Street View, or Google Earth, take a look in the lower right hand corner.  You will see a declaration of copyright, either for Google, for one of its partners, or both.  While these parties may absolutely claim copyright in the software, it’s not entirely clear that they can claim a copyright—at least in the US and Europe—in much of the imagery produced by these applications.  This is because the photo and satellite images appear to lack the modicum of “originality” required for protection.  In fairness, it must be noted that Google’s terms of use for these apps are quite liberal, mostly mandating attribution.

Maps & Charts

Maps and charts were two of three types of works (books being the other) protected by the first copyright act of 1790.  Near as I can tell, this is indicative of two things:  1) that American copyright doctrine had yet to evolve; and 2) that maps and charts were badly needed and very hard to make in the 18th century.   This utilitarian/incentive predicate to get cartographers and surveyors out into the water-moccasin-and-mosquito-filled wilderness does, with the hindsight of history, create a bit of a dichotomy with respect to the way copyright doctrine evolved by the end of America’s first century. In other words, until technology really began to shape the contours of the law.

For roughly the first half of the 19th century, it took a few cases for the courts to begin to draw lines separating copyright from its twin, patent law; and over time, jurisprudence on copyright increasingly coalesced around the principle of “originality of expression” rather than “sweat of the brow” to qualify for protection. Put simply, a work may take substantial labor and/or capital investment, but if it lacks at least some measure of human, creative expression, then it doesn’t generally qualify for copyright.  This principle was most recently solidified in the 1991 case Feist Publications v. Rural Telephone, which held that the compilation of a phone book, though laborious, did not meet the minimum standard of “originality” to be eligible for a copyright.

The question of how much creativity is required met its first major challenge when copyright confronted photography in the case of Sarony v. Burrow-Giles (1884) involving a portrait of Oscar Wilde taken by New York photographer Napoleon Sarony in 1882. In a time when the prevailing sentiment considered photos to be merely a mechanical means to record facts, the Supreme Court ultimately had to consider what made Sarony’s image the expressive work of its author.

In that case, the Court held that Sarony’s choices of background, arrangement, pose, etc. to achieve a look that was purposely designed (i.e. not capturing a fleeting moment of independent reality) was sufficiently “creative” to sustain copyright in at least some photographs. The issue of copyright in photographs that do capture fleeting moments of reality (e.g. street photography or photojournalism) recognizes choices like position, focal length, timing, and framing as representing the minimum amount of human creativity required.

Fast-forward to the present, and cameras are everywhere, from satellites miles above the Earth to cellphones in the hands billions of people on the Earth, to specially-designed Google cars roaming the streets and taking 360˚ views of nearly every traversable corner of every town, city, and hamlet.  The app is impressive and extremely useful. I’m sure many of us have planned trips to places we’ve never been by using Street View.  But are the images copyrightable?  Probably not. At least not in the United States or any country where copyright doctrine evolved on the principle of “originality” to make a work eligible.

Loyola Law School Professor Justin Hughes, whose paper The Photographer’s Copyright I’ve cited before, discusses the legal distinctions that many of us intuitively assume—namely that functional imagery like surveillance and security photos, police crime-scene pictures, and satellite imaging are inherently different from the kind of works captured by photojournalists, art photographers, and even many amateur photographers with an eye for distinctive compositions.  Hughes opines, for instance, that most of the photographs museums take of their public-domain paintings to sell as postcards and posters are not legitimately protected by copyright because they are precise representations (copies) of the original that do not contain—indeed are not meant to contain—any original expression of the photographer. Hughes writes …

“With all these photographs — photographs of museum paintings, images captured at ATMs and by immigration officials stamping your passport, Google Maps Street View, aerial reconnaissance photographs—there is no originality to give rise to copyright. These images may have copyright in the few countries that still base copyright protection on ‘sweat of the brow,’ but not in the United States or most countries in the European Union.”

With regard to Google Maps, Hughes suggests that when we use the tool in map view, Google at least has some statutory/historical claim to protection of maps, and there is precedent for human choices—colors, line thickness, shading, etc.—in the rendering of maps to qualify for copyright.  But when we use the application in Satellite view with all the markings turned off, Hughes is somewhat doubtful about the claim of copyright made by Google and partner TerraMetrics.

In his analysis, he describes the amount of human and computational labor required to composite various photo assets and data in order to present the satellite images we see in the app, but the question of copyrightability would turn on the extent to which any of that labor constitutes original, human expression rather than “garden-variety choices” made for the purpose of rendering the best possible representation of a factual image. Or as Hughes puts it, “what a perfect satellite would see on a perfect day with absolute fidelity.”

At the same time, Arizona State University Professor Dennis S. Karjala, in his 1995 paper Copyright in Electronic Maps suggests that the rejection of the “sweat of the brow” theory after Feist could, as he puts it, “deny copyright protection to a variety of works whose optimal production, as a matter of social policy, may require some form of intellectual property right as an incentive.”  In other words, perhaps Google’s claim of copyright in some, or all, of these apps rests on the more utilitarian rationale we can assume was present in 1790 when maps and charts were first given protection.

Of course, the chance that anyone will challenge Google on any of these copyright claims seems about as as likely as a camel passing through the eye of a needle, but that’s about corporate power, not tested theory of copyright law.  Suffice to say, that considering what a daunting adversary to the copyright interests of millions of creators Google remains, it’s at least interesting to consider that its own copyright claims in this case might prove very weak if they were in a legal dispute with an entity that treated their IP exactly as they have treated the IP of others.