Consumers following what pretentious activists call the “copyfight” could be forgiven for thinking it’s about the legality of unauthorized downloading. It’s not, of course, and it never has been. Downloading copyrighted material without payment or permission is almost always against the law – that’s why it’s called illegal downloading. The real question that courts around the world have spent the decade since Napster trying to answer is who should be held responsible.
It’s an important question. As Google points out every chance it gets, it would be impossible for the company to review every single video a user uploads to YouTube. On the other hand, it hardly seems unreasonable for it to take a closer look at videos marked “South Park.” But as Google maintains in Viacom’s lawsuit against YouTube, it has absolutely no responsibility to take any action at all until a copyright holder files a DMCA notice – even if the company that owns a particular video has continually objected to any use of its content. (The video service now uses a filter but it did not always do so.) Both extremes seem rather silly. To use a real-world example, I am unaware of any used book shop that requires everyone selling a hardcover to submit a receipt to prove he owns it – but I also imagine that police would take a rather dim view of a store that accepted 200 brand-new copies of the same title, fresh off the truck, no questions asked.
And yet that sums up Google’s policy toward illegal activity rather well. On a literal level, the company abides by its public relations mantra, “Don’t Be Evil.” But that’s only because it prefers to outsource bad behavior in a way that enables it to make money and still abide by the letter of the law. In at least one recent case, however, it did not even bother to do that.
There’s no better example of Google’s arrogance about the law than the company’s $500 million settlement with the Justice Department for accepting illegal ads from Canadian pharmacies. Google always says it should not be held responsible for the actions of those using its platforms, and online Google apologists have suggested that blocking all ads promoting illegal activity would be impossible. On the surface, this seems reasonable enough. But Google deals directly with some of its larger ad-buyers, and the company takes action when it sees fit: it banned those infamous teeth-whitening ads that were so popular several years ago. (Sorry kids, you’ll just have to brush!) And Google executives – including Andrew McLaughlin, who later served as deputy chief technology officer for the Obama White House – testified before Congress that they had a “rigorous” system for blocking ads from unlicensed pharmacies.
Of course, this testimony came from a company whose co-founder, Larry Page, once said under oath that he could not remember whether he favored buying YouTube. As it turns out, Justice Department officials believe Page knew all about these ads. And Google employees actually helped Canadian pharmacies adjust their ads so they wouldn’t be blocked, according to the Wall Street Journal. It takes some nerve for a company to say it doesn’t know about illegal activity when its own employees help facilitate it. I think the media business would call this chutzpah.
Remember, this is not the first time Google employees have actively helped companies advertising illegal products. In a 2005 lawsuit filed by the major movie studios against EasyDownloadCenter.com and TheDownloadPlace.com, the founders of the sites testified that Google assigned them account representatives and offered them credit to buy more than $800,000 worth of AdWords placements against searches like “bootleg movie download,” according to a 2007 Wall Street Journal story.
Thanks to the reporting of independent filmmaker Ellen Seidler – available at her invaluable blog – we also know that Google also doesn’t do much to block movie pirates from the AdSense network it uses to sell space on blogs. Although Google’s own policy says it removes pirate sites from its ad program, Seidler has shown that’s not true. She has also shown that Google also does as little as possible to limit pirate activity on its Blogger platform. It’s reasonable enough that Google doesn’t monitor the contents of Blogger sites – that might not even be possible. But when Seidler filed a DMCA request for a site that was full of links to pirated movies, she saw how little Google really cares about the issue; the company removed the link to her film, as it is required to by law, and left rest of the site untouched. This evil was someone else’s doing – Google just made money on it.
With great power, it seems, comes no responsibility at all.