Late last week, Google published a “Transparency Report” showing the number of requests it receives from copyright owners to remove search links to infringing material. In its blog posting, Google acknowledged that fighting piracy is very important and that it doesn’t want search results directing people to materials that violate copyright laws. It is good to see that Google agrees with this fundamental principle and continues to take steps to deter infringement. Transparency is also important -- knowing which infringing sites receive the most notices presents an important red flag regarding those sites.
But even more transparency is needed to fully understand the scope of the problem. Knowing the total number of links to infringing material available and the limitations Google imposes on rights owners to search for infringements reveals how meager the number of notices is relative to the vast amount of infringement. After all, as recently highlighted here, search for any major recording artist’s track and the term “mp3,” and you’ll find that most of the very first results offered by Google direct people to infringing material. Unfortunately, one sees similar results when one searches for any popular creative content followed by the words “free download.”
On the one hand, Google states that it processes an overwhelming number of notices. On the other hand, Google’s data misleads by calculating that the DMCA notice requests represent a tiny fraction of the pages on even the most recidivist sites. Let’s review some facts.
Fact #1: In order to notify Google of an infringement, you first need to find the infringement. But Google places artificial limits on the number of queries that can be made by a copyright owner to identify infringements. These limits significantly decrease the utility of Google’s take down tool given the vast nature of the piracy problem today and the number of titles we are trying to protect. The number of queries they allow is miniscule, especially when you consider that Google handles more than 3 billion searches per day. Yet Google has denied requests to remove this barrier to finding the infringements.
Fact #2: You can’t notify Google about the scope of the problem if it limits the notices it will accept and process through its automated tool. And that is what Google does. On top of the query limitation, Google also limits the number of links we can ask them to remove per day. Google has the resources to allow take downs that would more meaningfully address the piracy problem it recognizes, given that it likely indexes hundreds of millions of links per day. Yet this limitation remains despite requests to remove it.
Fact #3: One needs to consider these numbers and Google’s activities in context. Google says it received requests to remove 1.2 million links from 1000 copyright owners in one month. But consider that Google has identified nearly 5 million new links posted in just the last month in searches for free mp3 downloads of just the top 10 Billboard tracks. The constraints Google has placed on the tools they promote to deter infringement are well below what is necessary to identify and notice infringements on the Billboard top 10, much less the entire catalog of the American creative community.
Fact #4: Google’s “transparency report” calculates the percentage of a site that is infringing – but this data is flawed and of little value on its own. Specifically, Google claims that the DMCA notices it has received for a site represent less than .1% of the links it had indexed for the domains at the top of this list. But this number is misleading given the constraints imposed by Google on a copyright owner’s ability to find infringements and send notices to Google. If these constraints did not exist, how many more links on these sites might be identified? For example, Google calculates that infringing links account for only .1% of links on filestube, a notorious source of infringing links. For anyone who knows filestube, this seems unlikely, especially given that Google’s data doesn’t include DMCA notices sent directly to the site. Moreover, Google’s methodology fails to account for the percentage of traffic to the infringing portion of the site compared to any potential non-infringing portions. Let’s give copyright owners the ability to access all the pages on a site and take down all the infringing links, and then let’s rationally discuss how to categorize the sites.
Fact #5: Google’s data shows why its interpretation of the DMCA makes it ineffective. Let’s take a step back for a moment. Everyone – including Google – knows that the worst sites are repopulated with links to infringing files of the same content as quickly as links are taken down. For example, in a recent one month period, we sent Google, and the site in question, multiple DMCA notices concerning over 300 separate unauthorized copies of the same musical recording owned by one of our member companies. Yet that song is still available on that site today, and we reached it via a search result link indexed by Google. This highlights the futility of the exercise: if “take down” does not mean “keep down,” then Google’s limitations merely perpetuate the fraud wrought on copyright owners by those who game the system under the DMCA.
In order to truly address this problem, Google needs to take its commitment to fight piracy more seriously by removing the limits on queries and take downs, by taking down multiple files of the same recording instead of just one when a “representative sample” of infringing files is provided to them, and by establishing meaningful repeat infringer policies.
Clearly the current process is not working. Google is routinely directing people to unlawful sources of content, which is clearly at odds with data that suggests most people rely on search engines to identify trusted websites at the top of search results. If Google truly doesn’t want its search results directing people to materials that violate copyright laws, more should be done to address this problem. We look forward to continuing to work with Google and other intermediaries to find better solutions to this problem, and to gain more transparency into the information flows and search rankings.
Brad Buckles, Executive Vice President, Anti-Piracy, Recording Industry Association of America (RIAA)
We have frequently reiterated our core belief that protection of creative works is an issue of national importance to our economy and culture. It is not “content vs. technology,” nor is it “past vs. future.” It is an understanding of the interdependence between technology and content whose future will ultimately thrive or wither together. But the questions we are asked often is: how do we move toward that dynamic future? In the current political environment, is it realistic to advance any meaningful progress on measures to help the legal marketplace for music?
Just last week, we saw more evidence of a path forward and a clear answer to that question. The Association of National Advertisers (ANA) and the American Association of Advertising Agencies (4As) announced a “best practices” agreement to encourage all marketers to take proactive steps to address the harmful and real problem of counterfeiting and online theft. Specifically, these best practices advise marketers on how to prevent their brands from being advertised on illicit ‘rogue’ websites that overwhelmingly traffic in illegal goods by including specific language in contract agreements and insertion orders given to ad agencies. The advertisements of well-known brands on these illegal websites often fool consumers into believing the sites are legitimate.
This is an incredibly important step forward and one that helps signify this new day and age where others in the Internet ecosystem are stepping up on a voluntary basis to help discourage the online theft of American goods and services and foster legitimate commerce. This progress is no doubt exactly what the Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC) had in mind when it compiled its second annual report to Congress that highlighted voluntary best practices and partnerships of several technology and content participants.
Among other examples included in the IPEC report that underscore how some so-called intermediaries have stepped up to share responsibility is the recent voluntary agreement between ISPs, music labels and movie studios in addressing online theft. As we recently announced, this agreement moved closer toward implementation with the announcement of Jill Lesser as Executive Director of the Center for Copyright Information (CCI), the appointment of key consumer advocates to join CCI’s Advisory Board, and the retention of the American Arbitration Association to oversee the independent consumer review process.
Also among the noted accomplishments in the IPEC’s report are:
• In December 2010, eleven market leaders—American Express, Discover, eNom, GoDaddy, Google, MasterCard, Microsoft (Bing), Network Solutions, PayPal, Visa and Yahoo!—agreed to form a nonprofit organization to combat illegal online pharmacies. The Center for Safe Internet Pharmacies (“CSIP”) is expected to be operational by early 2012.
• In June 2011, American Express, Discover, MasterCard, PayPal and Visa reached an agreement on voluntary best practices to reduce sales of counterfeit and pirated goods.
We echo the IPEC in commending these partners who have stepped up to the plate and proactively undertaken voluntary marketplace efforts. This kind of cooperation helps serve as the building blocks for a bright future full of high-quality new content that benefits fans and creators alike. It also casts a glaring spotlight on search engines like Google who have yet to take the same kind of responsibility as other key online intermediaries. For example, while Google has delinked entire websites involved in spamming or of low quality, they refuse to do so for sites that predominantly traffic in illegal copies of copyrighted works, even when they have knowledge of the pervasive and repeat nature of the infringement occurring on that site. (Particularly strange practice for a company that touts itself as standing for the user when studies show that users want to be pointed to legal sites.) Such feet-dragging seriously undermines progress and the cooperative spirit we are working to achieve in today’s digital age.
We hope the recent best practices unveiled by the advertising community, along with the other examples included in the IPEC report, serve as a reminder that true progress is only achieved when we work together. We look forward to future progress and we commend the IPEC not only for highlighting these relationships, but for facilitating and fostering them. The IPEC and Congress on a bipartisan basis will undoubtedly continue to play vital roles in nurturing new industry agreements and we will continue to work with the White House, the Congress and our partners to build an online environment beneficial to everyone.
Senior Executive Vice President
Recording Industry Association of America