A year ago, the RIAA intensified its efforts to remove links to illegal music files from search engine results with the hope of better protecting our members’ music. This week, the number of these search returns to illegal music files removed by Google alone reached 20 million. Yes, you read that right: 20 million. And nearly the same number was sent to the underlying sites offering the content as well. Every day produces more results and there is no end in sight. Importantly, the targets of our notices don’t even pretend to be innovators constructing new and better ways to legally enjoy music – they have simply created business models that allow them to profit from giving someone else’s property away for free. So while 20 million might sound impressive, the problem we face with illegal downloading on the Internet is immeasurably larger. And that is just for music.
We are using a bucket to deal with an ocean of illegal downloading. Under a controversial interpretation by search engines, takedown notices must be directed at specific links to specific sound recordings and do nothing to stop the same files from being reposted as fast as they are removed.
It is certainly fair for search engines to say that they have no way of knowing whether a particular link on a specific site represents an illegal copy or not. Perhaps it’s fair for them to make that same claim at the second notice. But what about after a thousand notices for the same song on the same site? Isn’t it simply logical and fair at some point to conclude that such links are infringing without requiring content owners to keep expending time and resources to have the link taken down?
We do not call attention to this figure to criticize Google. The company is one, albeit very important, player in the Internet ecosystem. We have applauded the company for taking initial steps to strengthen company policies against copyright theft and hope this cooperative spirit continues and produces real, tangible results. But more must be done.
What this is indicative of, though, is a much larger problem. It says that something isn’t working with this system which was intended to balance the rights of content creators with the rights of companies like Google. Creators of all types and sizes – and especially the individual creators who try to protect their content on their own, spending their own time and money sending takedown notices instead of making the movies and music to which they’ve devoted their lives -- will tell you that the system isn’t working. The balance is off.
The music business has fully embraced the digital age – indeed, revenues from digital platforms reached nearly 60 percent in 2012 and will only continue to grow. Digital music is not just our future, it is our present. The modern music business has vastly transformed itself more than any other industry within the past decade, offering more than 500 authorized music services worldwide. We take great pride knowing that fans have access to licensed music however, whenever, wherever they want it (check out www.whymusicmatters.com for a list of leading authorized music sites in the U.S.).
But extensive sources of free and illegal music files continue to undermine a healthy music marketplace. The 20 million infringing links for a single search engine makes it quite clear that the burden on content creators is heavier now than it has ever been.
So what can we do to change this dynamic and ensure an Internet that not only works for everyone but one that allows all forms of creativity and innovation to thrive?
As the Congressional review of the DMCA gets underway, there should be a strong focus on what notice and takedown was supposed to accomplish. The DMCA was intended to define the way forward for technology firms and content creators alike, but some aspects of it no longer work. How could we expect it to? It was passed before Google even existed, or the iPod, or peer-to-peer file-sharing or slick websites offering free mp3 downloads. It was after the DMCA that Napster, and Grokster and Limewire and Grooveshark and Megaupload, to name just a few, came on the scene. In particular, it’s time to rethink the notice and takedown provisions of the DMCA.
Existing work with responsible internet businesses also provides a good template for a productive path forward with other potential partners. For example, voluntary initiatives with Internet service providers (ISPs), payment processors, advertisers and ad networks are all a promising sign that responsible players in the Internet ecosystem are stepping up to do their part to stem illegal access to music and movies. There are plenty of opportunities for similar collaborations with search engines and other players and we are hopeful progress can be made. But progress can only be achieved when there is a will and when voluntary initiatives are meaningful enough to bear fruit.
We’ve seen what good can happen when there is cooperation among Internet players to achieve the mutually beneficial goal of preventing copyright theft while encouraging innovation. We hope others will follow suit. Otherwise, the next 20 million takedowns will be no more effective than the first and present a sad reality for the millions of content creators that help drive American culture.
Executive Vice President, Anti-Piracy
Google Executive Chairman Eric Schmidt and Director of Ideas Jared Cohen recently offered up an extract from their book for UK newspaper The Guardian that was ominously entitled “Web censorship: the net is closing in.”
As promised by the title, the authors lay out a stark vision of how “censorship” will cause the open, free and global internet to crumble into national fiefdoms, greatly limiting consumer choice and essential human freedoms. There are, however, a number of problems with this narrative. First of all, it begins with an incorrect premise. The internet that we know today—or that we have ever known -- is not immune to the application of law, laws that are national in character and therefore applied by national courts and authorities. While the level of harmonization of national legislation has certainly increased greatly due to globalization and enhanced contact and coordination among states, we have not erased unique aspects of national legal systems, and we most certainly have not erased national cultural boundaries that define the identity of societies.
The underlying premise of the piece is that the internet is revolutionary in the sense that it has the capacity to operate globally. But “global” businesses have operated for a long time, and have fully understood the need to operate in a manner that respects the traditions, culture and laws of the particular countries in which they operate. The authors believe that barriers should not exist to what technology allows. But “barriers” are not all alike. There are important distinctions to be made that will determine the health and well-being of societies, and we must assiduously resist the deliberate conflation of any “restriction” as a form of censorship.
Indeed, Schmidt and Cohen reflect on this for a moment in the following passage:
“The majority of the world's internet users encounter some form of censorship – also known by the euphemism "filtering" – but what that actually looks like depends on a country's policies and its technological infrastructure. Not all or even most of that filtering is political censorship; progressive countries routinely block a modest number of sites, such as those featuring child pornography.”
But look what they have done here: They acknowledge that some restrictions perform valuable social purposes, yet they label them as “censorship” nonetheless. Deeming ANY restriction as a form of censorship allows them to define good public policy as one that poses no obstacles to what they like to call “permission-less innovation.”
But if any restriction is censorship, then censorship is not censorship—it is the application of moral choices based on the social contract. The authors take the human out of the equation, ironically because they believe that doing so will enhance the well-being of humanity. It seems to me that taking human choices and desires out of the equation is unlikely to yield benefits for humanity.
Whether we like it or not, not all societies will make the same decisions as we do. Individual choice is non-linear, messy and inefficient. And we will sometimes disagree with choices that are made by societies—even democratic ones. But we need to recognize that other societies may not make the same decisions that we would--some for bad reasons (suppressing political dissent), and some for understandable ones (preventing hate speech in societies that have been torn apart by racial, ethnic or religious violence). Guarding against censorship will require us to make distinctions among measures employed by states. And we must all be vigilant in resisting theories premised on technological determinism that are removed from human choices. As Jaron Lanier has so clearly articulated in “You are not a Gadget,” technology does not have wants. Information doesn’t want to be free, or to be expensive, because information itself has no volition. Schmidt and Cohen paint a picture of societal bliss and self-fulfillment if only we would get out of the way of technology and let “it” grow organically without man-made obstacles. But morality and law are man-made and not machine readable.
We must organize and advocate for an open and free internet. But let’s not make the mistake of defining openness and freedom as the non-application of laws. Effectively combating censorship will require diligence and dedication married with cultural sensitivity, and is poorly served by rhetoric which fails to make critical distinctions in judging the conduct of state actors. As U.S. Assistant Secretary of State Michael Posner observed in his keynote address at the State of the Net conference in 2012: “We do not need to reinvent international human rights law, or our enduring principles, to account for the Internet. No deed is more evil -- or more noble -- when it is committed online rather than offline.”