RIAA's Boss Thinks He Knows Better Than Google How To Build A Search Engine

from the so,-uh,-go-build-your-own dept

Oh, Cary Sherman. Lately, the RIAA and its boss have gone back to whining about how the real problem for their industry is Google. There’s almost no actual evidence to support this, other than the fact that the record labels that the RIAA represents have seen dwindling revenue, while Google is doing pretty well. So it must be Google’s fault. Cary Sherman, head lawyer in charge of the RIAA (funny that they never seem to put business people or innovators in charge…), has written an astoundingly misguided and misinformed attack on Google over at The Hill, which seems to think that publishing factually false information is fine, so long as it’s done by a high paid lobbyist.

The global music industry has now sent its 100 millionth music piracy notice to Google. That’s a staggering number and it is worth pausing for a moment to assess what it means and what it says about online music.

Yes. It would appear to mean that (1) there is a lot of music out there that people want and (2) perhaps your labels should do a better job getting it to people and (3) perhaps wasting time sending takedowns isn’t a particularly useful strategy.

For starters, that’s at least 100 million times Google offered to direct users to illegal sources for music just within the last two years

Um, no, it doesn’t mean that at all. It means that there were 100 million times that some automated crawler bot decided to send a link it found, which it believed was infringing, to Google to take out of its index. Whether it was an “illegal source” is a different question altogether. Whether or not Google offered to direct any legitimate user to that file is also something totally different.

That’s also 100 million times that an artist, songwriter, music label – or anyone else involved in the chain of creating and distributing music – was likely denied the opportunity to earn any royalties, revenues or sales.

That’s also just blatantly false. First, any Google search result comes with a bunch of other links as well, many of which could lead to revenue for those in that chain. Furthermore, even if the file was unauthorized (not, as Sherman falsely claims, “illegal”), that quite frequently still does lead to opportunities to earn royalties, as multiple studies have shown over and over and over and over again. On top of that, if someone is really looking for a free MP3 of something, that’s what they’re looking for and they’re not going to spend any money on the file anyway, so no revenue is “denied.” That revenue never existed.

And 100 million times that innovative tech companies – like Spotify, iTunes, Amazon, Deezer, Vevo, and dozens more – didn’t benefit from a sale or a stream.

Here is Sherman’s weak attempt at pretending he supports innovation. Again, if someone was looking to buy such a track or stream it, they likely know where to go. But that’s not why they go to Google in the first place.

From there, Sherman goes on to explain how he’d like Google to work. Because spending decades working for record labels has taught him all about how search engines should work, and how the users of those search engines would like them to work. Or, more accurately, he’d like to change Google’s search results in the mistaken belief that the kid looking for a free mp3 will suddenly buy it, if only he were told of places he could pay for it.

So the enforcement system we operate under requires us to send a staggering number of piracy notices – 100 million and counting to Google alone—and an equally staggering number of takedowns Google must process. And yet pirated copies continue to proliferate…

What’s that Einstein quote about “doing the same thing over and over again and expecting different results”?

The power of search and the predominant popularity of top-tier results are well documented – particularly in their capacity to steer users to illegal sites. A Wiggins study, for example, found that “65% of ‘pirates’ regularly use search engines to find infringing content.” Similar studies have found similar results.

Not quite. Most studies have shown something quite different. In fact, a study from the RIAA’s best buddies, the MPAA, actually found that just 19% of visits to infringing content were “influenced” by search (note: not found by search). In fact, when you dig deep into the numbers, you’ll find that a large percentage of searches that lead to content aren’t people just searching for some artist or some song, but rather searching for a site — so-called “navigational searches” such as someone doing a search for “the pirate bay.” I’m not sure what Cary Sherman thinks, but I find it doubtful that some kid is going to do a search for “the pirate bay” and then be happy when the search results point him to Spotify or iTunes.

And this is Sherman and other maximalists’ general confusion over search. They still think that search engines are supposed to be designed to show users what the RIAA wants them to find, rather than what the searcher wants to find. Directly changing Google’s search engine to give results that users don’t want won’t make anyone suddenly go buy music again, no matter what Sherman wants.

But, hey, since he’s so damn sure that he knows how to program a search engine, why doesn’t he go and do it? He seems to think he can build a better search engine than Google, so why not have the RIAA build its own search engine and go compete.

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Companies: google, riaa

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Comments on “RIAA's Boss Thinks He Knows Better Than Google How To Build A Search Engine”

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120 Comments
Anonymous Coward says:

Re: Re:

Ironically, I’ll sometimes use ‘pirate’ sites to see which games are popular/new than purchase them on Steam, GOG, etc. Google and other search engines don’t really tell you the top 20, so it’s just easier going directly to a ‘pirate’ search engine and I find them to be a better evaluator than MetaCritic by far.

cpt kangarooski says:

Re: Re: Re:

Google does not have a valid repeat infringer policy. They are going to be sued out of existence.

And for web searches, the law does not obligate them to have such a policy. Here’s the statutory language from 17 USC 512(i)(1)(A):

The limitations on liability established by this section shall apply to a service provider only if the service provider has adopted and reasonably implemented, and informs subscribers and account holders of the service provider?s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider?s system or network who are repeat infringers;

Google’s web search engine doesn’t, AFAIK, have subscribers or account holders. They simply index everything they can find, more or less. This means there’s no one to have a policy about, and no one to inform of it.

Now if you were talking about YouTube or GMail, or Google+ or something where there are actual accounts and user-provided content, you might have something.

Anonymous Coward says:

Re: Re: Re:3 Re:

Google is “hosting” links. If you are receiving millions of DMCA takedown notices and do not have a valid repeat infringer policy, you’re screwed.

This is exactly what the recent barrage of takedown notices to Google is about: building an iron clad case to sue them with. It’s what the public warnings as discussed in the above article are about. Google can either clean up their site or get sued out of existence. Their choice.

Karl (profile) says:

Re: Re: Re:10 Re:

As an “information location tool” Google must comply with the DMCA to receive safe harbor. That means they must have a valid repeat infringer policy.

The “repeat infringer policy” refers only to “subscribers and account holders of the service provider?s system or network.” (17 USC 512(i).)

Search engines usually don’t have subscribers or account holders. If that’s the case, then they have no obligation to have a repeat infringer policy. Whose accounts, exactly, would they terminate?

Anonymous Coward says:

Re: Re: Re:4 Re:

No, they complied with them.

However, what you do not (and cannot) show is how many links that were taken down were restored, because of a fraudulent DMCA notice.

I say “fraudulent” because the RIAA is free to file as many as they want without repercussions.

Got a wrong link? Tough shit for the person who has the link, not for the asshole who issued the bullshit notice.

Anonymous Coward says:

Re: Re: Re:

I’m pretty sure you’re making up those numbers, just like Cary Sherman is.

Google received 235 million takedown requests in 2013. A lot of those requests came from BPI (41.7 million) and RIAA (30.8 million). So if you assumed that the “global music industry” was composed of nothing but BPI and RIAA, they sent 72.5 million takedowns in 2013 alone. The “global music industry”, or at least the large organizations that lobby on behalf of music publishers, has sent far more than just 100 million takedown requests.

Oh, and of those takedown requests in 2013, Google admitted that 91% of them were legitimate; the remaining 9% were either “inaccurate” or requests to take down content that they’d already taken down. Here’s a source: http://torrentfreak.com/google-discarded-21000000-takedown-requests-in-2013-131227/

In terms of a “valid repeat infringer policy”, Google’s current policy complies with the law. There’s no legal requirement whatsoever that Google stop indexing repeat infringers, and thus no grounds for a suit. In any case, the RIAA is unlikely to sue Google, because they really don’t want to have the public looking at the calculations they use for “estimating” damages.

Oh, and for all those stockholders out there:
Sony (including Sony Music Entertainment / BMG): http://finance.yahoo.com/q?d=t&s=GOOG
Google: http://finance.yahoo.com/q?d=t&s=GOOG

Karl (profile) says:

Re: Re: Re:

Sorry, but Google has already admitted that 97% of the takedown requests were legitimate.

Uh, no. Google reported (not “admitted”) that they complied with 97% of the takedown requests for search results:
https://www.eff.org/deeplinks/2012/05/google-releases-new-copyright-transparency-report

The fact that Google complied with them does not mean they’re “legitimate.” For instance, a 2006 paper by Jennifer Urban and Laura Quilter (PDF) claimed that over half of Google’s search takedown notices were illegitimate – though Google complied with them.

Google does not have a valid repeat infringer policy. They are going to be sued out of existence.

If you’re talking about Google search, then they don’t need a repeat infringer policy under 17 USC 512(d). If you mean YouTube, then yes, they absolutely do have a valid repeat infringer policy.

I know you and your buddies like to pretend Google does nothing but launder pirate money, but that’s simply a lie.

Karl (profile) says:

Re: Re: Re:2 Re:

I’m not sure what you mean by my “buddies”.

Uh huh.

Google has to comply with the DMCA.

Which they do.

Though, technically, they don’t need to comply. The law says that they automatically get immunity from all liability if they do; it does not say they are automatically liable if they do not.

Of course, since immunity from all legal liability is such a strong incentive, and there are no disincentives for compliance, everyone complies with the DMCA as if it were a legal requirement. The only times that companies fail to comply with takedown notices – legitimate or not – is when they’re so obviously bogus, the companies feel they can securely risk liability by ignoring them.

That’s why compliance is absolutely not an indicator of takedown legitimacy.

Karl (profile) says:

Re: Re: Re:4 Re:

Everything you wrote here is incorrect.

Prove it. Show me the statute that says I’m wrong, or a judge that has agreed with you.

Maybe try asking a lawyer to explain the DMCA to you?

I know quite a few lawyers, thanks, and I’ve talked with them about copyright law quite a bit.

But I don’t need to. All I need to do is look at the explicit wording of the statutes:

Other Defenses Not Affected. – The failure of a service provider?s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider?s conduct is not infringing under this title or any other defense.

New Section 512 contains limitations on service providers’ liability for five general categories of activity set forth in subsections (a) through (d) and subsection (f). As provided in subsection (k), new Section 512 is not intended to imply that a service provider is or is not liable as an infringer either for conduct that qualifies for a limitation of liability or for conduct that fails to so qualify. Rather, the limitations of liability apply if the provider is found to be liable under existing principles of law.

A service provider that qualifies for such protection is not liable for monetary relief and may be subject only to the narrow injunctive relief set forth in section 512(j). 17 U.S.C. ? 512(a). If Perfect 10 demonstrates a likelihood of success on the merits, Google must show a likelihood of succeeding in its claim that it qualifies for protection under title II of the DMCA.

[…] Perfect 10 argues that we are bound by the language and structure of title II of the DMCA in determining Google’s liability for copyright infringement. We have noted that the DMCA does not change copyright law; rather, “Congress provided that [the DMCA’s] limitations of liability apply if the provider is found to be liable under existing principles of law.” Ellison, 357 F.3d at 1077 (emphasis and internal quotation omitted). As a result, “[c]laims against service providers for direct, contributory, or vicarious copyright infringement, therefore, are generally evaluated just as they would be in the non-online world.” Id.; see also 17 U.S.C. ? 512(l) (“The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense.”). Therefore, we must consider Google’s potential liability under the Copyright Act without reference to title II of the DMCA.

The Ninth Circuit has made clear that Plaintiff bears the burden of establishing RapidShare?s liability under the Copyright Act without reference to the DMCA, and that Defendants then have the burden of showing a likelihood that their DMCA defense will succeed.

  • Perfect 10 v. Rapidshare

myVidster received ?takedown? notices from Flava designed to activate the duty of an Internet service provider to ban repeat infringers from its website, and Flava contends that myVidster failed to comply with the notices. But this is irrelevant unless myVidster is contributing to infringement; a noninfringer doesn?t need a safe harbor.

  • Flava Works v. myVidster

    I’m sure I could dig up more if I wanted to.

    Maybe you should have someone else explain the DMCA to you.

Anonymous Coward says:

Re: Re: Re:6 Re:

Unfortunately not. The lawsuit against Google will not be based on what the Perfect 10 case was.

As far as them only having to have a repeat infringer policy if they have subscribers or account holders, that’s not what the law says. It says that after implementing a repeat infringer policy, they must notify subscribers or account holders. Not that they must have them.

Sorry.

cpt kangarooski says:

Re: Re: Re:7 Re:

As far as them only having to have a repeat infringer policy if they have subscribers or account holders, that’s not what the law says. It says that after implementing a repeat infringer policy, they must notify subscribers or account holders. Not that they must have them.

Well, assuming that that is a correct interpretation, I think you’d still lose your argument. Quoting from the statute, in order to enjoy the DMCA safe harbor, they must have “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider?s system or network who are repeat infringers.” If, as seems likely, they have no subscribers and account holders, the requirement is moot. Indeed, the policy very may well be to never have subscribers or account holders to begin with, and thus have no one who ever needs to have their subscription or account terminated.

And even if it isn’t moot, barring actual discovery in an actual case, how would you ever know that they don’t have a policy, so long as they have no subscribers and account holders to whom the policy must be communicated?

Further, the DMCA was enacted very shortly after Google was founded. If you’re right, why is it that in all this time, no one has ever attacked Google in such a fashion?

Anonymous Coward says:

Re: Re: Re:8 Re:

Limitation for Information Location Tools
Section 512(d) relates to hyperlinks, online directories, search engines and the like. It limits liability for the acts of referring or linking users to a site that contains infringing material by using such information location tools, if the following conditions are met:

1. The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks.

The staggering amount of takedowns proves Google is more than aware.

2.If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity.

Google receives ad revenue in various ways via pirate site listings.

3. Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material.

Google complies with the individual takedowns but allows repeat infringer’s links to continue to show up.

Bye bye Google.

Karl (profile) says:

Re: Re: Re:9 Re:

The staggering amount of takedowns proves Google is more than aware.

They must be aware of specific infringements at specific web locations, and furthermore take no action to remove the content.

Google is made aware of those specific locations only because of those takedown notices. They would be liable if they received those takedown notices and failed to respond. But Google does respond.

So, no, they are not liable because of this.

Google receives ad revenue in various ways via pirate site listings.

No, they don’t. For one thing, the ad revenue must be generated from the infringement itself. Merely having ads that show up on a search for “Breaking Bad download” does not mean that their ad revenue is generated from infringement. They make just as much ad revenue if the user clicks on a link to iTunes or Amazon or wherever.

Google complies with the individual takedowns but allows repeat infringer’s links to continue to show up.

The DMCA only requires that service providers terminate the accounts on the service provider’s system that are used by repeat infringers. This is explicit, black-letter law:

(i) Conditions for Eligibility.?
(1) Accommodation of technology.? The limitations on liability established by this section shall apply to a service provider only if the service provider?
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider?s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider?s system or network who are repeat infringers; and
(B) accommodates and does not interfere with standard technical measures.

The law says, explicitly, that the condition is that they terminate the accounts of repeat infringers, and only those that reside on “the service provider’s system or network.”

Neither the sites that show up in search engine results, nor the people who search using those search engines, have accounts on the search engine’s system. The DMCA does not require that any search engine “terminate” anything else.

In fact, under your interpretation, no search engine would have DMCA protections. That’s clearly not what Congress intended, nor what the law says.

Bye bye Google.

Keep dreaming. Even if – by some misreading of the law – search engines were not found to have safe harbors under the DMCA, then Google would still need to be found liable under some theory of contributory infringement. They’re not.

John Fenderson (profile) says:

Re: Re: Re:

Google has already admitted that 97% of the takedown requests were legitimate.

No, they have not. What they said was that was the percentage of requests that were properly submitted (all the i’s dotted and t’s crossed) and that resulted in a takedown.

They did not comment on if the request was actually legitimate or not — because they have no way of knowing that.

Anonymous Coward says:

Re: Re: Re:

Let’s also note for the record, that removing 97% does not imply that they stayed removed.

It’s VERY possible that a significant number of them were put back up, after either the real content owner called “bullshit” and Google complied, or it was found that it was legitimate fair use.

Again, you’re spreading incomplete information with that 97% statement.

Richard (profile) says:

Re: Re: Re:

Google does not have a valid repeat infringer policy. They are going to be sued out of existence.

and they will be replaced by something far more difficult for the RIAA to deal with – something like YACY where there is no-one to even send a takedown notice to.

It would be at best a Pyrrhic victory but most likely an own goal.

blaktron (profile) says:

Re: Re:

Especially since Einstein’s crowing achievement was proving that you could get different results by doing the same thing over and over again, a la Quantum Mechanics / Uncertainty principle.

This one sticks in my craw too, because not only is it wrong but its fundamentally the opposite of what Einstein actually believed.

From what I gather it was originally attributed to Benjamin Franklin, where it makes a LOT more sense.

Anonymous Coward says:

Re: Re:

Techdirts boss also thinks he can be congress better than congress, be the president, be the NSA, be the copyright expert, create music and movies, make money from his inherent talents/skills better than EVERYONE ELSE.
Did I mention also preside over Court cases, prosecute and defend better than any lawyer.

AND

run a backwater, extremist web site for the past 16 years, (and sell more crystal ball than any Gypsy.

Anonymous Coward says:

Re: Re: Re:

He does have several points in what he writes. It is just a bit of a dream to think a that national systems can be protected without ridiculous rules in countries where taxes to an increasing degree are paid by selling “npn-physical” products of movies, music, books, software, stocks, bonds, patents, trademarks, licenses, councelling, consulting etc. etc. Education is a problem of its own in a free market (at the moment the brain-drain is going towards the above mentioned countries, but that could turn around very fast.)…

The result of slacking significantly off on protection of these things would be people moving to lower taxed countries and outcompeting the westerners in mashups and cheaper/better services. Since national states are so important for living standard (and will be for at least decades if not centuries in the future!), it is a losing battle to go too far in the direction of reason.

mmrtnt (profile) says:

Back the Day

They still think that search engines are supposed to be designed to show users what the RIAA wants them to find, rather than what the searcher wants to find.

When I was a kid, this would be the equivalent of going around the city and changing all the Swap Meet signs (where they sold new albums for $3.99) to Record Store signs where they sold for $7.99

Anonymous Coward says:

After nearly two decades of ignoring search engines, why do the MAFIAA suddenly put so much focus on Google?

For most people, the only reason they might use Google is to find the web address of the Pirate Bay – which probably just about everyone on the planet has heard about by now.

And then once people have found and used the Pirate Bay, why would they even need Google for trying to find (copyrighted) media to download? Won’t they just go back to the Pirate Bay again each time they’re looking for something?

Apparently that simple logic seems to have been completely overlooked by the copyright enforcers.

Anonymous Coward says:

If they are a decent pirate site, they don’t allow Google in to scrape the site. I’m sure this will have a dramatic effect when those sites commonly use robot.txt to keep Google out. No returns from those ever show up in a search engine. There are some search engines that don’t obey robot.txt. Most sites dealing with warez, prevent them from scrapping the sites either with a premade blocking filter or manual block their domains and IPs.

Removing all links from Google will not prevent this as those people already know the address and won’t need Google to find it.

What it will do is increasingly make Google irrelevant to any searches. Mainly because false DMCA claims take far more than just infringing links down.

Personally I don’t use Google or any of its services. I have no account with them very much on purpose. Mainly because of ads and privacy issues. I get around on the net just fine without needing Google. So all their blocks and removal of links doesn’t really have an effect on what I search for and seek.

Since Google continues to lose ground to the copywrong people, over time, fewer and fewer will use the search engine. Not because they are looking for infringing files but because of the collateral damage is removing more material every day that has nothing to do with infringement but everything to do with finding results.

MadAsASnake (profile) says:

The reason the unauthorised sites show up so much is because they are relevant. The reason that even with a lot of meddling that remains the case, is that there are so often no relevant links that are authorized. If RIAA and the labels would like to change that, they might want to start distributing their works in a manner that people want. iTunes has already shown it doesn’t have to be free.

DannyB (profile) says:

Re: Let me correct you with some Hollywood math

Sir, you need to learn to do Hollywood math properly.

The contrary could also hold true. Each of those 100 million links could each have been hit 100 million times! Assuming those were all mp3’s lasting 5 minutes each, that is 8.333 x 10^14 hours of music. That’s over 119,000 hours of music for each of 7 billion people on the planet! Or more than 13 years of music for each person on the planet!

Think of the trillions of dollars of lost revenue to poor starving RIAA executives and their poor starving kittens! And think of their babies! () This makes the earlier figure of $75 Billion dollars look measly by comparison.

How could the world ever repay those RIAA executives! That’s many times the total global economic output over many years — lost, just lost I tell you!

especially considering those babies are a primary food source

out_of_the_blue says:

A) Another search engine wouldn't stop Google's aiding crime.

B) Here’s Mike’s only standard for morally right: “There’s almost no actual evidence to support this, other than the fact that the record labels that the RIAA represents have seen dwindling revenue, while Google is doing pretty well.” — It’s ALL about money with Mike. Anyway you can get it, as with Google spying on everyone and stealing even YOUR privacy, that’s great. But musicians: they just have to let anyone and everyone steal their products, especially so that Mike’s grifter pals can “monetize” the content and not pay them at all.


Where Mike “supports copyright” — except when he supports piracy.

11:49:54[m-402-0]

John85851 (profile) says:

Where are the infringing files on Google's site?

I guess I’m missing a step in the process, but why is sending 100 million notices to Google something to brag about, like it’s some kind of victory? Is Google hosting the illegal files? How much illegal content was taken down compared to how many links were removed? (Hint to the RIAA: there’s a big difference.) Why weren’t the RIAA’s bots/ agents/ representatives told to follow the links and serve these notices to the offending sites who actually host the files?
Oh, right, because it’s easier to shoot at Google than go one-by-one through the list of infringing sites, which might be hosted in Russia, China, North Korea, or some other place that’s of reach of US laws.

Do the people at the RIAA even understand the concept of a search engine? Do they not realize it would be like removing a card from a card-catalog that lists an illegal book? Okay, this makes it slightly more difficult for someone to find the book and its content, but it’s still on the shelves for anyone to find. Wouldn’t it be better to remove the illegal book instead of the card (or link) that points to it?

Also, like other posters are saying, how many of these notices have the RIAA sent to Bing or Yahoo? Or do they not realize that (gasp) people could use another search engine to find the illegal content?

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