Tim Wu, the legal scholar credited with coining the oft used term “net neutrality” was hired by Yelp to conduct research into Google’s search algorithm. Wu, along with Harvard Business School professor Michael Luca and researchers at Yelp, examined whether Google gives consumers the best results. The results don’t look good. Per Recode.net:
Google knowingly manipulates search results according to a research paper published Monday from several academics. The study presents evidence that the search giant sets out to hamper competitors and limit consumers’ options. The paper lands as Google prepares to release its response to the European Union investigation, which rests on similar claims about Google’s comparison-shopping product.
Meanwhile, in the EU a new website Focus on the User (http://www.focusontheuser.eu/) has been set up to publicize the issue, charging, “Google+ is hurting the Internet. Europeans have the power to stop it.” Along with a rundown of the various ways Google manipulates search results to favor its own product via Google+ the website offers a video explainer (below).
2. 40 State Attorneys Generals file amicus brief in support of subpoena process to investigate Google
Attorneys General from 40 states have filed in amicus brief in support of Mississippi’s AG Jim Hood’s efforts to subpoena Google. In the brief they ask a U.S. Appeals Court to overturn a preliminary injunction issued last March by U.S. District Judge Henry Wingate that blocked Hood’s efforts to investigate Google’s anti-consumer business practices. From the brief:
As is evident from the letters of record signed by multiple Attorneys General, Mississippi is not the only state with concerns about Google’s consumer practices. (See ROA.1199-1200, ROA.1243-1244, ROA.1245-1246). Mississippi, like every state, is entitled to address these concerns through further investigation utilizing proper tools, including administrative subpoenas. Mississippi, like every state, also is entitled to review information gathered pursuant to its investigation and make decisions about actions to take—or not take—to enforce its consumer protection laws for its citizens. Google may challenge Mississippi’s Subpoena consistent with state law. But Google should not be allowed to bypass state subpoena review processes and derail a legitimate state consumer protection investigation by filing premature declaratory judgment lawsuits and obtaining sweeping preliminary injunctions in federal court. Both the law and public policy counsel against it.
3. Google accused of eavesdropping
According to an article published in The Guardian, Google is also under fire from privacy advocates for incorporating technology into its Chrome browser that allows eavesdropping.
“Without consent, Google’s code had downloaded a black box of code that – according to itself – had turned on the microphone and was actively listening to your room,” said Rick Falkvinge, the Pirate party founder, in a blog post. “Which means that your computer had been stealth configured to send what was being said in your room to somebody else, to a private company in another country, without your consent or knowledge, an audio transmission triggered by … an unknown and unverifiable set of conditions.”
Scott Cleland, a noted Google critic, points out that it’s business as usual in comments posted on his Precursor Blog:
This is not an isolated incident. It is a part of a broader Google pattern of behavior.
What should be big news and scandalous here is that the company that has gathered the most Internet users in the world based upon public representations of being pro-privacy and open — is secretly engaged in widespread wiretapping.
June Gloom for Googleiath
Earlier this month Google was slapped down by a Canadian appeals court, Its judges were not impressed by Google’s specious “free speech” arguments and affirmed a lower court ruling mandating Google remove certain search results (linking to illegal products) on a worldwide basis.
As regulators in Europe continue to tighten the vise, perhaps this summer will be a turning point in efforts to hold Google accountable for its bad business practices. Stay tuned…
Google’s global reach has global implications when it comes to the law
In a case that could have broad implications moving forward, a Canadian appeals court handed Google a rare legal setback when it upheld a worldwide injunction ordering the search giant to remove results linked to counterfeit hardware. The ruling was an affirmation of a lower court ruling that mandated Google remove certain search results (linking to illegal products) on a worldwide basis.
Reading the court’s decision, the plaintiff’s arguments–and Google’s responses–are familiar to anyone who’s gone toe to toe with tech behemoth and its shills like the EFF. What’s new is that the appeals court not only upheld the lower court’s worldwide injunction, but it also shot down the tired, oft-used “free speech” canard employed by tech apologists to attack rights holders:
[105] The plaintiffs made considerable efforts attempting to track down the defendants, and find ways to eliminate their websites. The judge’s finding that the granting of the injunction was the only practical way to impede the defendants from flouting the court’s orders amounts to a finding that the involvement of Google in this matter was necessary.
[106] With respect to extraterritorial effects, Google has, in this Court, suggested that a more limited order ought to have been made, affecting only searches that take place on the google.ca site. I accept that an order with international scope should not be made lightly, and that where an order with only domestic consequences will accomplish all that is necessary, a more expansive order should not be made…
[107] The plaintiffs have established, in my view, that an order limited to the google.ca search site would not be effective. I am satisfied that there was a basis, here, for giving the injunction worldwide effect. [emphasis added] I have already noted that applications can be made to vary the order should unexpected issues arise concerning comity.
[108] Finally, I note concerns expressed by Google and by the intervenors Canadian Civil Liberties Association and Electronic Frontier Foundation concerning the openness of the World Wide Web, and the need to avoid unnecessary impediments to free speech.
[109] The order made in this case is an ancillary order designed to give force to earlier orders prohibiting the defendants from marketing their product. Those orders were made after thorough consideration of the strength of the plaintiffs’ and defendants’ cases. Google does not suggest that the orders made against the defendants were inappropriate, nor do the intervenors suggest that those orders constituted an inappropriate intrusion on freedom of speech.
[110] There has, in the course of argument, been some reference to the possibility that the defendants (or others) might wish to use their websites for legitimate free speech, rather than for unlawfully marketing the GW1000. That possibility, it seems to me, is entirely speculative. There is no evidence that the websites in question have ever been used for lawful purposes, nor is there any reason to believe that the domain names are in any way uniquely suitable for any sort of expression other than the marketing of the illegal product. [emphasis added] Of course, if the character of the websites changes, it is always open to the defendants or others to seek a variation of the injunction.
It’s refreshing to see a court of a law look past EFF hyperbole and distinguish between legit websites and those engaged in criminal activity. Score one for common sense (and the law). It should be noted that in predictable fashion, the EFF characterized the decision as “dangerous precedent” and that allows an intermediate to “edit the internet” and warned that the ruling “lays the groundwork for nations with authoritarian restrictions on speech to also impose their own rules on the global Internet.”
I suppose we should consider it progress that instead of “breaking the internet” we are now only accused of wanting to “edit it?”
Over the years, Google has run roughshod over any effort to impede its take-no-prisoners business practices, but lately its veneer of invincibility seems to have cracked. As this latest ruling demonstrates, courts and regulators (outside the U.S.) are finally beginning to treat Google as the global beast that it is.
In May of 2014 the Court of Justice of the European Union found that EU citizens had the “right to be forgotten” and that search engines like Google must remove search results upon request. Last November, Article 29 Data Protection Working Party, the group charged with overseeing the ruling, issued guidelines on implementation that .com domains worldwide, not just those in the European Union should be included in requests for data removal.
7. Territorial effect of a de-listing decision In order to give full effect to the data subject’s rights as defined in the Court’s ruling, delisting decisions must be implemented in such a way that they guarantee the effective and complete protection of data subjects’ rights and that EU law cannot be circumvented. In that sense, limiting de-listing to EU domains on the grounds that users tend to access search engines via their national domains cannot be considered a sufficient mean to satisfactorily guarantee the rights of data subjects according to the ruling. In practice, this means that in any case de-listing should also be effective on all relevant domains, including .com. [emphasis added]
In April, the EU’s scrutiny of Google’s business practices became even bolder when it charged the company with anti-trust violations. From the Wall Street Journal:
The European Commission took direct aim at Google Inc. Wednesday, charging the Internet-search giant with skewing results to favor its comparison-shopping service. But the formal complaint may only be the opening salvo in a broader assault that prompts big changes at Google.
European antitrust chief Margrethe Vestager said she continues to examine other domains, such as travel and local services, where Google is accused of favoring its own services over those of others. She also opened a second front, intensifying a separate probe of Google’s conduct with its Android mobile-operating system.
Given Google’s growing influence as a Washington lobbying force, don’t expect to see U.S. lawmakers following in the EU’s footsteps any time soon. However, any crack in Google’s armor is progress. While U.S. authorities won’t hold Google accountable, it seems like the rest of the world just might.
This month marks the five-year anniversary of my first blog post about online piracy and its link to advertising profits. At the time I was pissed. The movie Megan Siler and I had spent three years creating had just been released, and within 24 hours, had found its way online as an illegal download. One illegal copy quickly morphed into many tens of thousands.
What made me angry wasn’t necessarily the fact the film had been pirated. Though certainly I wasn’t pleased, it wasn’t really a shock. I knew in the back of my mind that piracy was an issue. However, I’d never really examined it up close. When I did, I was surprised not only by the how–but by the why. Online piracy was, in fact, an insidious for-profit business cloaked behind a curtain labeled “sharing.”
Online piracy is driven by profit
It turns out our film–like thousands of others, studio and indie–was just click-bait for a flourishing online market driven by greed. The breadth and scope of this illicit online marketplace was shocking. Examining a wide range of pirate websites I discovered an insidious, profitable and widespread economy driven–in large measure–through the complicity of major American corporations.
Sure, some of the major players were well-known thieves like Kim Dotcom whose Megaupload business empire was built on content theft. But many others cashing in on the online feeding frenzy were (and still are) mainstream corporations like Google. Ad service providers and major brand advertisers were (and still are) incentivizing and sustaining online piracy as a profitable venture. It was true five years ago and unfortunately it remains true today. Legit companies supply the blood that feeds the beast.
My original blog at popuppirates.com
I didn’t begin blogging about online piracy for the sake of our film. That’s old news. The reason I’ve continued to spend the past five years investigating and writing about online piracy and copyright issues is because I don’t believe what’s happening to our creative community is fair. I write because I worry about the future of those who earn their living by creating the content we so enjoy. I write because online pirates continue to rip-off creators at every opportunity in order to make a buck.
I also write because worry that online piracy diminishes the diversity of content that’s produced. After all, we won’t know what we’re missing when it isn’t made. Creative voices on the fringes, the most fragile among us, are often the first to go, and it’s often a silent exit. Piracy apologists who believe it’s their right to take what they want– when they want–routinely belittle creators who dare speak out against such theft. For those defending piracy it seems easier to denigrate and devalue artists rather to hear them.
When I recently sent a DMCA notice to the Chilling Effects database to highlight the hypocrisy of Google’s message that it “fights piracy” my move was met with predictable derision. Few on the copyleft seemed to understand that it really wasn’t about me, or our film. The same scenario happens day after day to all types of creators who send takedown notices to Google. I used our film as an example (because I could) in order to make a point about how Google (and Chilling Effects) conduct business–removing links, but replacing the original link with another link back to a page featuring the original link. It’s a duplicitous shell game that mocks the very intent of the DMCA.
“I figured you are stupid Gay”
One blogger was so bent out of shape by my takedown notice to Chilling Effects he wrote his own post. He sent me a series of messages via my Vox Indie Facebook page and attempted to point out the futility of my anti-piracy efforts. Apparently crabbed when I didn’t respond, in a fit of pique, he resorted to childish name-calling:
A screencap showing partial excerpt of a blogger’s FB messages to me.
So much for thoughtful discourse eh? For the record, I am “Gay.” As for stupid, well, that “blogger” certainly thinks so. It would appear he has a problem with stupid Gayswho dare to speak out in defense of creators. For the record I didn’t bother to read his blog post which–given the tone of his messages–was probably not particularly friendly, nor thoughtful.
That particular blogger was not the only one to mock my attempt to highlight Google’s DMCA shell game; though I must say I’ve not really experienced the homophobic angle before. TechDirt, a site well known for its not-so-friendly views on copyright, also recently posted a harangue about my DMCA notice to Chilling Effects. That piece featured the subheading “from the stupidity-in-Russian-doll-form dept” so it would seem that the word “stupid,” in various forms, is a popular term for frustrated anti-piracy apologists to use when writing rebuttals. I imagine their dependence on the word is merely a further sign they have no cogent argument at the ready.
As the saying goes, “sticks and stones…” However, the upside is that my efforts to bring attention to the damage done by online piracy are clearly having the desired effect.
LGBT Filmmakers are among those whose voices are diminished by online piracy
Pirates sites around the world stealing LGBT films
I should also point out that LGBT filmmakers regularly send me emails asking what they can do to protect their films from online piracy. Some of them have spent years trying to bring their vision to the big screen and when they see their newly released film showing up as downloads and streams on pirate sites across the globe they are crushed. I wrote a piece about this some time ago, but it’s worth reminding audiences that these are some of the independent voices that are damaged when we allow online theft to flourish.
How can we change the status quo? We speak out. The good news is that we are. Artists across the spectrum have begun to focus frustration into action. We’ve begun to speak out and formed coalitions, demanding with one voice that our representatives in Washington take action to better safeguard creative work (and livelihoods) in the digital age. Whether it’s by re-tweeting for the #IRespectMusic campaign or joining the new Content Creators Coalition, as WE come together, WE will make progress–of that I am sure.
I didn’t make a film in order to become an “anti-piracy” activist. I made a film with my (also gay) filmmaker friend Megan Siler because we had a creative idea we wanted to share with lesbian audiences. However, once our film was released, and subjected to the online piracy pulverizer, this particular stupid Gay couldn’t look the other way. It opened my eyes to what was happening across the board to content creators of all stripes–and it wasn’t OK.
Hopefully, over these past years, through my research and subsequent blog posts, I’ve helped frame the debate over piracy in a way that exposes criminal nature of online piracy and motivates others to acknowledge it’s a problem in search of a solution. I also hope readers can better appreciate the long-term value of safeguarding our creative communities large and small.
Here’s to the next five years and hoping creators continue to make progress against the scourge of online piracy…I may be stupid, but I’m also stubborn. 🙂
“Balanced” copyright is really just code for killing it
The “ReCreate Coalition” is a jazzy, and kinda warm and fuzzy sounding name isn’t it? Yep, our favorite anti-artist groups are at it again, morphing into yet another anti-copyright potpourri whose mission is to demolish copyright in the name of protecting innovation or, as their press release glibly trumpets: “diverse coalition launchestopromote balanced copyright law, creativity and free speech.”
The internet has empowered everyone online to be a creator, opening up new audiences and markets for innovative people and businesses. We must work proactively to ensure that copyright laws keep up with our amazing technological advances, allow for creativity to flow to all corners of the world, and still respect the rights of content creators.
Let’s translate shall we? What’s she’s really saying is:
In order for big tech to continue to reap millions off creative content it doesn’t own it’s imperative that copyright law be neutered so that nothing will impede big tech’s ability to grow profits…
Notice the carefully crafted use of “innovative” as an adjective to describe both the people and the businesses she deigns to protect. Certainly copyright laws should “keep up with” technological advances, but not in the way I assume O’Conner means. She and her ilk hope to disembowel current copyright law in order to benefit tech’s bottom line, but if we are serious about transforming copyright law so that it remains relevant in the 21st century lawmakers should really begin by revisiting the woefully out-of-date 1998 Digital Millennium Copyright Act to better protect the rights of content creators.
True copyright reform should begin with questioning why it’s OK that creators have been on the short end of the stick for nearly two decades? Why not revise “safe harbor” so that it protects the innovative musicians, filmmakers, authors and other creators who routinely have their work ripped off and monetized online by others? If organizers of this shiny new coalition genuinely believed in “respecting the rights of creators” they would work to improve copyright law so that creators are afforded more protection, rather than less.
O’Conner asserts that everyone online is now a creator, but let’s face it–not every creation is equivalent. Just because I can upload a mashup video to YouTube doesn’t mean that the content I created is worthy of protection that trumps the rights of the creator whose creation made my mashup possible.
Sure, there should be an allowance for fair use when appropriate–but do members of the ReCreate Coalition really envision a world where someone who works 3 minutes on something should always have the same (copy)rights as those who spent 3 years creating the original work? Just because people can upload content online doesn’t mean their rights are equal to, or exceed the rights of those who originally created it. Innovation, in whatever form that takes, cannot be a license to steal.
Take a look at the list of groups that united to form this new, anti-copyright effort:
American Library Association, Association of Research Libraries, Center for Democracy & Technology, Computer and Communications Industry Association, Consumer Electronics Association, Electronic Frontier Foundation, Media Democracy Fund, New America’s Open Technology Institute, Public Knowledge, and R Street Institute.
If you really want to understand what the goals of this nascent coalition are,simply follow the money. The same cast of characters–led by Google–seems to appear repeatedly. Whether it be through slimy, backdoor means or endeavors like the ALA’s Google’s Policy Fellowship, there’s no denying the ever-present funding (and influence) bought by big brother tech. Could their coalition be any more incestuous, or disingenuous?
While lobbyists for a number of these groups are actively working to dismantle copyright protections–and in the process undermine the livelihoods of filmmakers, musicians, authors and more–it’s worth noting many of these anti-copyright organizations seem to pay their employees pretty well–much better than non-profits where my friends work.
Take a look the Center for Democracy & Technology’s 990 tax filing for 2013 and note all ten of their ten salaried executives made over $100,000 per year, with the CEO at the time, the position now held by O’Connor, earned a pretty nice salary of $286,731 (plus $17,204 in other compensation). It’s worth noting that CDT appears to get the much of its funding from tech interests.
According to the 990 filed by the (Google/Facebook backed) EFF, for the tax fiscal year 2013, everyone but the accountant earned compensation in excess of $100,000 + (and its ED more than 200K). Those on salary at Public Knowledge in 2012 were also part of the 100K plus club with its president/co-founder earning compensation of $207,150 plus an additional 17,544 listed as “other.”
While I don’t begrudge these folks earning a good living, I do find it troubling that much of their work is so ardently focused on denying others that same right. I also find it troubling these organizations are not the grass roots organizations they purport to be. While some of their work, particularly that of the ALA, is laudable, for the most part the groups that make up this “coalition” spend a much of their time lobbying in support of initiatives promoted by tech-based corporations–and against content creators who depend on robust copyright law to protect their livelihoods. This latest phony alliance appears to be just another effort to push big tech’s profit-driven agenda to weaken copyright in order to grow profits.
It’s also worth that at the same time the ReCreate Coalition announces its stepping into the ring, another astroturf entity, The Mic Coalition sprouted up alongside. In lock-step with the ReCreate mission, this Music Innovation Consumers coalition pretends to have the interests of creators in mind, but of course it’s simply more disingenuous posturing.
Note how they deftly employ the magic tech abracadabra word “innovation” in their moniker. After all, who can argue with magic that is innovation right? To appreciate the true extent of the baloney proffered by the MIC coalition, excellent posts on the subject can be found on The Trichordist blog. Here’s just a sampling:
Gee this wasn’t coordinated at all. Two new Astroturf (squared) organizations in two days (with possibly the same web designer?) The day after the announcement of the the new ReCreate Coalition, an AstroTurf organization composed almost exclusively of Google connected Astroturf organizations, some of the same companies plus The National Association of Broadcasters, I Heart Media (Clear Channel) Pandora and NPR have announced the creation of the MIC-Coalition in order to lobby AGAINST fair digital royalties to artists; AGAINST terrestrial royalty for performers, and to keep songwriters under the oppressive and unconstitutional DOJ consent decrees. Read the website it’s unbelievable.
The real joke is on anyone, in Washington D.C. or elsewhere, who takes these groups seriously. I mean, if you’re a fan of Fringe you know that shape-shifters never had good intentions. My guess is the same could be said for these shiny new anti-copyright coalitions too. Apparently there’s a plentiful supply of b.s. to fertilize an endless supply of Astroturf in Washington D.C.
*Note, the above embedded video from the Fox series “Fringe” has been uploaded to YouTube and monetized by WBTV.
While Torrent Freak laments the fact that Google has already processed more than 100 million DMCA takedown notices this year, don’t shed any tears for the company. The massive number of takedowns is simply a sign that the internet giant’s nefarious business model (dependent on content theft) continues to chug merrily along. Per Torrent Freak:
A few days ago Google received its 100 millionth takedown request of 2015. The counter is currently at 103,218,572, which means yet another record. Last year it took a month longer to reach the same milestone.
If the numbers go up at the same rate throughout the year, Google will process half a billion allegedly infringing links during 2015.
In looking at these figures it’s important to remember that the vast majority of these takedowns are automated so it’s not as if thousands of Google worker bees are laboriously checking and removing infringing content from Google hosted sites. Operating takedown services (via online DMCA templates, content ID, and “trusted submitter” programs) is simply the cost of running a business that routinely allows (and encourages) users to upload and monetize infringing movies and music.
One should also remember that Google doesn’t really remove pirate links from its search engine, it just re-links to its partner, the Chilling Effects database so that users can still easily find the pirated movies, music, books, etc.
YouTube turns to licensing content to bolster its business model against increasing competition
Takedowns aside, it’s worth noting that Google’s YouTube nefarious business model is showing signs of decay. The Wall Street Journal recently reported that YouTube failed (again) to actually make a profit for Google despite revenues that grew by more than a billion dollars from 2103 to 2014 (3 billion to 4).
Google/YouTube is under increasing threat from other social media companies that promise content creators more favorable revenue deals for licensed content. According to a recent piece in the Wall Street Journal by by Shalini Ramachandran and Mike Shields:
Technology companies including Facebook Inc., Snapchat and streaming-startup Vessel are promising large TV-channel owners better terms for their video programming than Google Inc.’s YouTube, hoping to capitalize on mounting frustration with the Web giant in the entertainment industry.
The challengers to YouTube have been in talks with programming suppliers such asViacom Inc.,Time Warner Inc.,Comcast Corp.’s NBCUniversal and 21st Century Fox.They are all promising more generous revenue-sharing deals than YouTube, which lets content creators keep 55% of ad revenue, people familiar with the discussions say.
It’s a sweet irony that in order for Google/YouTube to remain at the top of its game its innovators have to turn to the very thing the company has spent the past ten years ignoring–licensing creative content. According to Variety, feeling the heat from competitors, Google has been forced to pony up to produce original programs in order to compete:
YouTube, too, is plowing bucks back into its most popular talent — a bid to keep its top creators from jumping to Vessel, Vimeo or others. With the YouTube Originals initiative, the Google subsidiary is paying its biggest stars to produce family and comedy programming, whether scripted or unscripted. That content is slated to debut in exclusive windows by the end of 2015.
Note the emphasis on “exclusive.” Of course, in order for (licensed) content to remain exclusive the sharing of unauthorized copies, i.e. piracy, will have to be squelched, otherwise the content quickly becomes non-exclusive, right?
How many DMCA notices Google will be sending to others when its own “original” content gets pirated?
One has to wonder how many new employees will Google have to hire to protect its “exclusive” content from online thieves? Will the anti-copyright apologists at Google ever eat crow and acknowledge that protecting creators’ work from online theft is important to sustaining one’s bottom line? If Google wants to succeed as a producer of content it’s likely that it will be sending a few DMCA notices of its own.
Meanwhile the DMCA safe harbor provision is out of date and due for a major overhaul
No matter how Google/YouTube’s business evolves moving forward, news of 100 million takedowns should serve as a (further) wakeup call for lawmakers to revisit the worn out “safe harbor” provision of the DMCA. Safe harbor was intended to protect online innovation, but instead has become a legal loophole routinely exploited by companies like Google to game the system at the expense of creators.
…this oft-abused language has served to shelter digital thieves at the expense of rights holders. “Safe Harbor” has enabled the growth of a criminal cancer and it’s a cancer–that as of now–cannot be beaten, only kept (marginally) at bay.
Where else, aside from the internet, is it OK to build a business around theft? If anything Google’s 100 million takedowns is a stark sign that its failed to effectively safeguard the rights of content creators.
While most creators have better things to do (like making more music or films), unless they act, Google and its partners in crime are free to monetize the stolen content. Basically it’s fill up the piggy bank until someone complains.
So, don’t feel sorry for Google’s 100 million takedowns–feel sorry for all those who continue to be ripped off by its innovative business model. As Google begins to view its business from the other side of the creative fence perhaps it will develop some innovations to better protect rightsholders. That would be a true, and welcome, innovation.
As an indie film and broadcast journalism veteran, I'll share my perspectives on issues of interest to the creative community and beyond--Ellen Seidler
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