I read about Google’s decision to change its ranking algorithm to favor “authorized” content providers where I usually read about new things: Â in the newspaper, over breakfast. Â That link goes to the New York Times. Â Here is a link to Google’s official announcement. It’s been almost 20 years since I first surfed the Web and almost 40 years since I first logged in to a computer network, and still, I read dead trees.
Tech leviathans come and go. Â There was IBM in the 1960s and 1970s, Microsoft in the 1980s and 1990s, and for about the last decade, there has been Google. Â (Or, if you prefer, there was Ma Bell, then the breakup, then the gradual reassembly of the old system, and now Skype and its competitors.) Â IBM re-invented itself; Microsoft is not what it once was; now, it’s Google’s turn. Â In other words, my reaction to Google’s announcement differs somewhatÂ from Deven’s. Â Google is just another tech leviathan now becoming something else.Â Something a little less exceptional, and a little more politically ordinary.
Was anyone still holding on to some idealized view of the Internet as a “pure” information medium, and Google and the idea of “search” as benign gateways to and curators of its contents and flow? Â I hope not.Â (I may well be wrong.) Â I searched the phrase “Golden Age of the Internet” (on Google, of course), and I came up with references from more than 5 years ago, as well as references from 2012. Â Whenever that Golden Age was (some might argue that it ended in 1994), if it ever existed, it’s clear that the Golden Age has passed us by. Â Â The Internet has long been well on its way to becoming a wholly-owned subsidiary of Big Media, just another big private company massaging data (“our” data) for its own benefit and for the benefit of those other companies with the market caps and voices loud enough to matter. Â In telecommunications law and policy, this has been an open secret for some time; that’s what the “net neutrality” battles have been about. Â On the “content” side, that is, copyright and trademark-related material, Â Siva Vaidnyanathan was the first person to really make a pointed case for this, I think, but even Siva, today, sometimes seems willing to accept the idea that Google (the suite of tools, not the company)Â is an OK technology so long as we all understand how it really works, and who it really works for. Â Critical transparency for all.
Is critical transparency enough? Â Google’s copyright announcement is, I think, a larger camel’s nose in a darker tent. Â I can’t *not* use Google, or Bing, or any other search engine; functionally, there is no alternative right now to finding many if not most things on the Web, or on the Internet. Â I can, in theory, simply give up on the Internet, or abandon most of its mythology, and find what I think I really need to find in the dead tree version of the New York Times or the Wall Street Journal or even, heaven forfend, in books — printed books. Â I could wait for the next big thing — post-Google – to emerge. Â Would anyone care to tell us all what that is? Â Google itself was hip and kind of subversive when I first used it in 1998 [meta note: Â nb. my clever way of repeatedly insinuating my credibility as a skeptical early adopter]. Â For the moment, however, I have the options in front of me.
Once upon a time, maybe a decade ago, I could hold on to the idea of one kind of so-called “competition” — don’t like the online news? Â Go read what’s on the news stand — but I think that era is past. Â For the last several years, as print has slowly receded into its own niche, the Internet *has become* the competition.Â Â “The Internet” is as always a metaphor; in this case, it’s a metaphor for search.Â Search gives us the people’s news, news that we find, news that we make, news that we write — that’s been the mythology, and we’ve believed it. Â The editors at the Times show me what *they* think is important, and my cable company packages channels that *they* choose (allegedly pursuant to their “First Amendment” speech rights – but that’s a slightly different post). Â Yes, I know that news doesn’t come from nowhere. Â News itself isn’t the point, or the only point; this generalizes: Â music, film, software. Â Poetry. Â Museum collections. Â Recipes. Â Fashion advice. Â Deep truths of humanity.
Google says: Â It is not removing sites from its search rankings. Â It is merely using complaints about serial copyright infringement as a “signal,” where the result of the signal is to push accused infringers lower in the rankings. Â That’s true in a technical sense, but technical is never enough; Google’s position is a bit too clever for me. Â One way to look at this new system is that it displaces public copyright law — claims, allegations, proof of facts, litigation, judgment, accountability — with “Google Law.” Â If a copyright claimant meets Google’s algorithmic burden of proof, then the algorithm adjudicates the claim, and there is a Google remedy. Â The accused infringer doesn’t go offline; the accused infringer still has an address (or, more likely, addresses). Â But the accused infringer is punished in precisely one way that the claimant wants; the claimant “wins” the case. Â And no one, other than Google itself (in some broad corporate sense) knows what has happened, that it has happened, or when it has happened.Â
As someone who writes and thinks a lot about fair use, and with acknowledgements to people who have made closely related claims before (Julie Cohen, Frank Pasquale, Brett Frischmann),Â this strikes me as a clever way to “privatize” (and limit) fair use; Google’s system is a step toward a perfect world of privatized, secretÂ copyright liability — and not “strict” liability (i.e., liability based on causation, but not based on fault), but “absolute” liability (liability without causation). Â I don’t think that the true pirate sites are engaged in fair use, but there is no reason to expect that the claims, and the data, and Google’s use of that data, will differentiate (or can differentiate) between plausible fair use claims — which are out there, even for music and film — and real piracy. Â What happens when the recording and motion picture industries learn that if they generate more credible-sounding complaints, the more success they have in pushing objectionable websites lower in Google’s rankings?
The motion picture folks and the recording industry folks who have pushed Google to do this say that they are protecting the interests of “creators” (i.e., trained, professional creators) and the jobs that “creators” have and that they support. Â That claim is both empirically and philosophically weak, for reasons that I have written about before.Â Â At best, the claim is defensible solely with respect to the present forms of the so-called “creative” industries — which are, by no means, the only or best forms that these can take (or have taken). Â But I understand why it appeals to the casual, uncritical reader. Â I suspect that Google doesn’t care too much about “creators” as such. Â Instead, I think that Google is looking down the legislative road at new versions of the SOPA and PIPA legislation that failed to clear Congress earlier this year, and Google is trying to position itself to argue that no new law is necessary, that Congress should omit or dilute “follow the money” rules that undoubtedly will appear in new legislation, and/or that whatever the new law might look like, Google now sits on the lawful side of the road.
Meanwhile, as Deven asks, why should copyright owners be the only ones getting preferential treatment from Google? Â Why not victims of hate speech? Â Why not governments deprived of revenue by tax cheats? Â Why not gold medal winners and Super Bowl champions? Â Or ( somewhat more seriously), “authorized” representations and presentations of celebrities and well-known athletes and politicians? Â Or governments that we want to be friendly with? Â Google ultimately decided to stand up to the regime in China, but it won’t stand up to the MPAA. Â Hmmm.
Recently I posted about Google’s renewal of its fair use arguments in the context of the Google Book Search litigation. The important fair use claim in that case is not the claim about Google’s posting “snippets” of copyrighted books. Â The important fair use claim is that claim about Google’s scanning the entire text of copyrighted books in order to generate the database that permits it to serve snippets as search results. Â The process of creating that database is, legally speaking, closely related to the process of creating the database that permits any search provider to serve results. Â The Google Book Search litigation, and Google’s arguments there, turn out to be pretty fundamental to how search works, and Google is in there right now, fighting that particular good fight.
That leaves me scratching my head. Â Does Google not see that these two things — its new copyright-based search algorithm and its fair use position in the Book Search litigation — are related? Â I am sure that it does. Â Google employs too many really smart people, including some really smart lawyers, not to see the linkage.Â I’ve read enough corporate history to know that “Don’t Be Evil” never really disciplined Google’s development; I’ve now seen enough corporate behavior to conclude that Google is, in practice, just another corporate beast.Â Some good, some bad, some so-so.
I’ll end the rant here. Â It will be interesting to see what, if anything, happens next.