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January 6, 2015
Secret conspiracy to revive SOPA?

According to Google, the Motion Picture Association of America (MPAA) has:

  • "conspired to achieve [the Stop Online Piracy Act (SOPA)]'s goals through non-legislative means,"

  • "pointed its guns at Google," and

  • "did the legal legwork for the Mississippi State Attorney General."

Where to begin?

If MPAA and its members are protecting their rights through "non-legislative means," is that a bad thing? Absolutely not. It simply means they are attempting to protect their rights on the basis of pre-existing law rather than trying to enact new law. Who could object to this? What does one say in response to Google's allegation that motion picture studios have pointed their guns at the search engine? That they have the power to pull the trigger a kill Google? Is this paranoid, delusional, hysterical or all three?

Jim Hood, the Attorney General of Mississippi, is also president of the National Association of Attorneys General. As chairman of NAAG's intellectual property committee, Hood sent a letter to Google in November, 2013 that began as follows:

As you are aware, the overwhelming evidence shows that Google facilitates and profits from numerous illegal online activities ranging from piracy to illegal drug sales and human trafficking. Yet Google has repeatedly refused to take reasonable but important steps that would reduce the ability of criminals to profit from their crimes. Google's inaction is not merely a failure to do the right thing. Rather, it raises serious questions as to whether Google is engaged in unlawful conduct itself.

Google is trying to block what it calls an "enormously burdensome subpoena" issued by Hood, and the company's legal brief alleges that

The Attorney General has demanded in several meetings that Google pre-screen or block third-party content and search results that merely may involve illegal activity, even at the cost of burdening lawful, protected speech **** The Attorney General has been particularly focused on websites containing allegedly infringing content protected by copyright. He has demanded that Google promote in its search results sites that have been endorsed by Hollywood, display an icon alongside such favored sites in its results, and de-index sites "substantially dedicated to intellectual property infringement."
For one thing, it seems clear that the parties can't agree on the extent of the problem. Google takes the view that, "[i]nevitably, some tiny fraction of Internet content relates to offensive or unlawful activity." Others claim there is in fact substantial unlawful activity on the Net. One recent report, for example, estimated that at least 79-84 percent of sampled files on 30 of the most popular online file sharing destinations infringed copyright.

Google admits there is one set of policies for advertising and YouTube videos, and another set for search results. Hood alleges that it is Google's search results that facilitate piracy, forgery of identification documents, sales of counterfeit goods, cigarette sales to minors, and human trafficking.

Google does not allow advertising on websites that offer unauthorized downloads of copyrighted works, nor does it permit the uploading of infringing content to YouTube. In 2014, Google disapproved 428 million advertisements, suspended or terminated over 900,000 AdWords advertiser accounts and terminated over 200,000 websites from AdSense; and YouTube removed or blocked 180 million videos.

A 1998 law, the Digital Millennium Copyright Act (DMCA) allows Google to apply a much less restrictive set of policies with respect to search results. According to Google, DMCA "creates a safe harbor from copyright infringement liability for information location tools like Google that remove infringing content upon receiving an appropriate takedown request from the copyright holder." Google removed 222 million web pages from the search index in 2013 alone in response to takedown requests. But Google is unwilling to go after entire websites that are substantially dedicated to intellectual property infringement. According to its legal brief,

Google has reasonably made the judgment that going further--removing entire sites from search results (as opposed to removing only content identified as infringing), without a judicial finding of illegality--is not appropriate unless mandated by law.
At issue is whether the 1998 DMCA needs to be updated. In Planet Google: One Company's Audacious Plan to Organize Everything We Know (2008), Randall Stross notes that in 1998, "the entire World Wide Web could be stored on hard drives that fit within a dorm room" (because most of the Web's information consisted of text), and Google received only 10,000 queries a day. Stross adds that,
Before 1998, the Web was still small enough that almost any search method served well enough, producing a list of sites with matching Web pages that was short enough to be easy to scan in its entirety.

By 2013, Google reported that it was receiving an average of almost six billion searches a day, and Cisco reports that most Web traffic consists of video ("Globally, IP video traffic will be 79 percent of all consumer Internet traffic in 2018, up from 66 percent in 2013.").

"The DMCA makes it my responsibility to police the entire Internet on a daily basis," Maria Schneider testified in March. She added that the majority of her time is now spent on activities that allow her some chance of protecting her work online. "Only a fraction of my time is now available for the creation of music." Bruce Boyden estimated that mainstream copyright owners were sending takedown notices for more than 6.5 million infringing files, on over 30,000 sites, each month in 2013. It's hard to imagine Congress intended this outcome.

It's unfortunate some choose to cast this debate solely in terms of "wholesale site-blocking," although there may be circumstances where de-indexing a site is not inappropriate for wilfull and repeat offenders.

Filtering technology now exists that could prevent the reappearance of works that have already been taken down under notice (the "highest volume of notices seem to be for reposted works."). Copyright holders such as Sean M. O'Connor have advocated for an automated "notice and stay down" regime.

This debate is also not about the First Amendment. "One disappointing part of this story," according to Google,

is what this all means for the MPAA itself, an organization founded in part "to promote and defend the First Amendment and artists" right to free expression.' Why, then, is it trying to secretly censor the Internet?

Copyright serves the First Amendment, which is why the First Amendment does not protect illegal copyright infringement. As the Supreme Court observed in Harper Row v. Nation Enterprises (1985), "the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."

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