Anti-Censorship Google Plans to Police the Internet

Google likes to pretend its not your average corporation, you know, “don’t be evil” and all that. Yet for not being your average corporation, it seems to be relatively adept at duplicity. Google announced this month on its blog that it will begin to punish sites that receive an inordinate amount of DMCA takedown notices by banishing them to obscurity on page 2, or worse, page 3. This is apparently not censorship.

This is the same Google that raged against SOPA, including launching this site which called on the masses to rise up and fight for a free and open internet, now admittedly engaging in censorship. A few people have picked up on the inconsistencies at play, but the question remains as to what prompted this change in the rules. The answer lies in the second half of the populism-soaked PR materials Google was distributing back in January: “harmful regulations to American businesses.” Google was against SOPA, and is now playing DMCA hall monitor, for the same reason that any business has done anything since the invention of capitalism.

In her testimony before Congress on November 16, 2011, Google’s copyright counsel Katherine Oyama delineated the space between anti-piracy and censorship within which Google seeks to operate. According to Google the main threat to copyright owners comes from foreign sites, and that law-abiding American companies should not be punished. However, at least one one the companies Google identifies as having received the most DMCA takedown requests for, 4shared.com, is American. That site lists itself as located in San Francisco.

Additionally, Google complains that under SOPA, “an Internet ‘search engine’ is required to take ‘technically feasible and reasonable measures’ to prevent an illegal site from being served as a direct hypertext link. In an era where search results are evolving rapidly beyond ‘ten blue links,’ it is not clear what this obligation might require.” As the nation’s predominant search engine though, indeed one so predominant it is currently under an antitrust investigation, Google is responsible for much of that evolution itself. Two months after that testimony, Google released  “search plus your world,” aka that thing that puts random Google+ pages into your search results that you didn’t ask for, indicating perhaps one of the “legitimate innovations in search” that SOPA would “chill or slow.”

Another of Google’s innovations is its recent step into the role of content provider. The beef between Google and the entertainment industry is well documented, but Google got a face full of it when it created Google Music, which launched the day before Oyama’s testimony, without Warner Music. Google has had problems with scaling Google Music worldwide, and indeed in its announcement it said “This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify,” or, in a fantastic coincidence, Google Music.

The news has already been good for Google Music, with Geoff Taylor, CEO of the British Recorded Music Industry telling the Guardian that “This has the potential to be really significant, but it all depends how it is reflected in the results people see. It makes us feel that Google is a little bit more on our side. It’s helpful background music to these [Google Music] discussions, certainly.” A few blogs have picked up on this coincidence, but surely there is nothing meant by it, since well-timed coincidences sound like the work of an evil corporation.

Google has had to contend for a minute with the label of piracy-enabler. Indeed, this column in Forbes by Scott Cleland, diligent protector of internet competition and tech capitalism, calls Google just that. At the end, Cleland calls on Google to do the exact thing it then announced it would do seven months later.

Google’s new policy becomes a bit of a stickier wicket, though, considering its previous role as champion of First Amendment rights. In the testimony, Oyama objected that “SOPA raises serious First Amendment concerns for U.S. citizens, as well. The prospect of ISPs and search engines ‘disappearing’ entire sites when they have violated no U.S. law (but only ‘facilitated’ unlawful acts of third parties) raises serious concerns.” In many respects, this new DMCA policy reaches the same effect. Google claims that only “valid” takedown notices will factor into the new algorithm, but “valid” is a tricky word in this case. In this case, as Search Engine Land notes, “valid…simply means that someone filed the right paperwork and that Google didn’t receive a counter-challenge.” The presence of a DMCA takedown notice is not proof of guilt, and indeed sometimes companies will file false DMCA claims in an attempt to intimidate other websites. The removal of a search result from the first page is in many ways a disappearance, and sites that have been victims of such intimidation may not have any method to restore their search standings.

In its Anti-SOPA past, Google argued that it merely provided a service for users, and that as long as it complied with the letter of the DMCA, it should not be held responsible for whatever purpose its users had. Google is trying to frame its decision as a response to the overwhelming increase in DMCA takedown requests it’s received over the past year, but for even the number one offending site, filestube, the 903,831 urls reported constitutes fewer than 0.2% of the 458,882,095 sites it indexes. These sites, products of a free and open Internet, were fine when Google needed them to build traffic, but now that they are becoming competitors, Google is kicking them to the third/fourth page curb. In a very not-evil coincidence, YouTube will remain largely unaffected.