Will the EFF Tolerate Any Copyright Enforcement?


Maybe the folks at the Electronic Frontier Foundation could save themselves a lot of repetitive work if they just write a blanket statement declaring once and for all that they believe copyrights should never be enforced online in any context whatsoever.  Because no matter what proposal they encounter, it seems they will always grab their box of fridge-magnet hyperbole and cobble together a statement designed to make it sound underhanded and nefarious.

Of course we’ve come to expect that if a proposed copyright measure is legislative, the EFF will call it something like “government overreach.” But apparently, if a proposed action is part of a voluntary initiative by industry, they’ll call it “shadow regulation.”  That’s exactly how Jeremy Malcolm, Senior Global Policy Analyst for the EFF, refers to a recent agreement in the UK reached by Microsoft, Google, and representatives of major copyright holders. Brokered by the UK Intellectual Property Office, the parties negotiated a voluntary “code of conduct” with the purpose of demoting search results for URLs that have received a certain (undisclosed) number of DMCA takedown notices.

Malcolm correctly observes that Google was already using DMCA data to demote certain sites in its search results, but the EFF is still sounding alarm bells over two factors in the development of this agreement:  1) that the meetings themselves, and some of the agreed-upon terms are secret; and 2) that the agreement was allegedly reached in response to an “explicit threat” by the UK government to take legislative action if the parties could not come to terms.   So, referring back to my original accusation, if the government mandates that platforms mitigate copyright infringement, the EFF thinks it’s wrong; and if the platforms voluntarily collaborate with rights holders to mitigate copyright infringement, the EFF still thinks this is wrong.  See where I’m going with this?

The EFF complains that “the public” is not represented in these “shadow regulation” agreements—an accusation that earns a cartoon double-take because this proclivity for exaggeration only feeds the illusion that the public has any say in the operation of these search companies in the first place.  We have a measure of market power, as we do with all companies, but Google and Microsoft do not seek public debate on the manner in which their search algorithms function or are adjusted. And it should be obvious to users by now that Google’s search results reflect some combination of Wikipedia, paid priority, and popular trend—none of which guarantees that the most relevant or best-quality results will top the list every time.

How good is search these days anyway?

With regard to my last post about advertisers seeking better value online, and the role of fake news in that story, I happened to do a Google search for the term “pizzagate.”  And what do we get?  Results #3 and #4 are both utterly bogus sites designed to attract users who may be inclined to believe that Hillary Clinton really was running a child sex ring through a D.C. pizzeria. Y’know, because search quality.

Result #4  pizzagate.com is a classic example of what happens when some opportunist buys a URL based on a trending topic and then populates a page with keywords, videos, images, and links that optimize SEO in order to generate revenue with traffic to posted ads. It’s a site full of garbage that probably makes its registered owner some money, but which provides no social value of any kind; and it sits above the fold on the first page of Google’s search results because that’s how the system works.

This capacity to manipulate search results—all in the name of unfettered “innovation”—has done considerable harm to journalism, scientific knowledge, authors of creative works, local businesses, major advertisers, users, and even the democratic process itself.  So, unless Google and Microsoft have ready solutions for improving all of that, the EFF can spare us its hand-wringing over the search-result demotion of websites that engage in chronic copyright infringement.  Yet, Malcolm writes, “[Google] must be very careful that its acquiescence to this shadowy regulation doesn’t escalate into a series of capitulations to copyright holder demands.”  Fridge magnets.

As reported yesterday, Google may be about to “capitulate” to new advertiser demands because (hold onto your beers) this is all just business. People really should stop pretending the internet industry is something special—as if the decisions made are not business decisions and as if those business decisions are not going to require negotiation with other business interests and with government.

But because we’re talking about the internet, the EFF and others seem to imagine that the public enjoys general oversight—as if Google were Congress.  We’re just customers, either happy with the services or not.  If anything, the pervasiveness of Google’s control over so many aspects of the digital market should be a far greater concern than whether or not the company agrees to work with rights holders to mitigate infringement. And in fairness, this is where the EFF’s strengths as a public advocate seem best directed.  Real issues of concern like privacy should give that organization plenty to do, particularly in the current political climate, but copyright enforcement really isn’t the side door to social injustice they keep portraying it to be.

In general, copyright enforcement in the digital age benefits consumers and creators just like it did before the digital age. The only players who substantially benefit from zero enforcement are the major web platforms, and the EFF should stop doing PR (even if it’s not their intent) for these multi-billion-dollar companies. Meanwhile, if the platform owners and creative industries collaborate to foster a more legal, fair, and sustainable digital market for creative works, this will benefit consumers, creators, and economies overall.

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