The metaphor in the post title isn’t mine, but it was the first thing that came to mind as I read through Google’s announcement today of its newest copyright policy initiatives. All told: In order to get out of the copyright compliance business, Google is getting much more heavily involved in the copyright compliance business. Across a range of Google products and services — Blogger, AdSense, Autocomplete, Search — Google wants to extricate itself from its unofficial role as “liable intermediary” in copyright disputes and policy debates. Let copyright owners and accused direct infringers and fair users go at it directly. Google wants to be Switzerland, in the sense that it does not want to take sides in copyright disputes.
Of course it is taking sides, but in a way that seems opposed to the way that it has largely taken sides in the (still just proposed) Google Book Search settlement. With Google Book Search, the basic framework is opt-out for those who object to Google’s use of their copyrighted works. With these new copyright policies, the presumptive priority of copyright is baked in. Gradually, Google products and services will enable access only to “authorized” content, subject to policies that will enable claims that allegedly unauthorized content is really authorized, or lawful even if not authorized. This, too, echoes something of Switzerland: Google, like Switzerland, is neutral because it can be. Not only has Switzerland long been viewed as largely impregnable to would-be attackers, but the country is armed to the teeth.
Read Google’s official announcement here, and the conference call version here.
What continues to interest me is not the specifics of Google or any one of its policies, but the normative framework that is implicitly doing the work behind the scenes: It is not copyright itself that is driving Google to do this or that, but the fact that Google has a complex architecture that largely allows it to write its own rules — but not rules that it simply announces and imposes on us. Instead, these are rules in which all of us, as users of Google services and suppliers of creative content and demand for it, are somehow, if often involuntarily, complicit. Google’s algorithms make us part of its governance machine, and allow Google to stand outside the fray that it has, largely, enabled.
Here is a take on the “intermediary/Switzerland” analogy, in the free speech context:
http://www.law.yale.edu/documents/pdf/ISP/Bryan_Choi_-_Swiss_Speech.pdf
The
approach I suggest here is to adopt a model similar to Swiss banking, which
places banks between the citizen and the government, and guarantees the availability of banking services regardless of the identity of the citizen.6 Similarly, the notion would be to interpose free-speech intermediaries between the speaker and the government that would serve as both the aggregator and the distributor of sensitive speech, with an active mission of guaranteeing accessibility to that
speech by anyone online.”
Of course, the Swiss Bank is probably a lot more interested in providing banking services to a petrostate despot than to, say, democracy activists within his country.
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