We already noted that the first "punch" of the legacy entertainment industry's new attacks on Google was a silly and self-contradictory study from the MPAA
blaming Google for leading susceptible people straight to infringing content. Of course, the details of the study didn't really support the inferences the MPAA is throwing out there, but, you know, that's the MPAA. The second "punch" also is pretty weak, and comes in the form of RIAA boss Cary Sherman testifying before the House Judiciary Committee's IP subcommittee
. The hearing is supposed to be about "voluntary agreements," and much of Sherman's piece talks up various "voluntary" (and I use the term loosely, since nearly all were "coordinated" by the White House, and many came with the implied threat of legislation if an agreement wasn't made) agreements like the "six strikes" agreement, which studies have shown is unlikely to help
the legacy entertainment industry players.
But then he turns to the "what's missing?" section, and front and center is... Google.
If ISPs can be considered the gateway by users to rogue sites online, search engines may be considered the roadmaps or, more directly, the turn-by-turn directions and door-to-door service to these sites. There can be no doubt that search engines play a considerable role in leading users to illicit services and can be a key part of addressing infringing activity online.
Actually, there can be tremendous doubt. Because as we've shown
(and the MPAA's own study confirms), search engines are very rarely used to find infringing materials. Furthermore, there has yet to be any
evidence that search engine blocking actually helps "address infringing activity online." In fact, as with the MPAA report, the RIAA first claims that changing search results can help, but on the very next page admits that Google did
change its search results, and it didn't help. The RIAA, of course, relies on its own "report card" for Google, which has already been shown to be laughably flawed
The problem is a basic one. The RIAA and MPAA would like sites they like to be listed higher in Google's search. Most companies
that want that learn how to optimize their sites for search. It's called Search Engine Optimization (SEO). Only the legacy entertainment industry would think that, rather than doing what every other website does
, they get to go to Google (and Congress) and demand that Google change its algorithm to pump up their preferred sites.
The RIAA also has an astoundingly dangerous idea for how to "fix" Google:
We believe it would be useful to see voluntary initiatives by search engines that take into account whether or not a site is authorized to provide the content at issue in determining search result rankings for searches to consume that content. This could take into account not only the absolute number of copyright removal requests sent about a site to trigger demotion of that site, but also whether the site is authorized to provide the content to trigger a higher search rank for that site.
This idea clearly comes from people who don't even have the slightest clue how search works, or what the unintended consequences of such a change would be. Let's take a basic example. If I do a basic search on the title of a movie, it doesn't necessarily mean I want to watch the movie online right away (either via authorized or unauthorized means). I might just want to know who acted in it, when it was released or whether it had good reviews. But, under the RIAA's proposed "solution," Google should demote all the perfectly legitimate websites that provide that kind of information, and instead push sites that have licensed the movies to the top. That's not going to help. It's going to piss off information seekers.
Furthermore, this doesn't take into account how things change, and how sites/technologies that are initially attacked by the industry later turn out to be important. We've talked plenty of times about the MPAA's well covered attacks on the "Boston strangler to the movie industry" that was the VCR. Of course, it was just four years
after Jack Valenti made those comments that Hollywood was making more money from home video than from the box office. So, along comes the next VCR... and the RIAA and MPAA get to whine about how it's "not authorized" and pushes down the search results. Suddenly this tool that could be a tremendous boon
to the industry can't get the attention necessary to grow and succeed. It's not far fetched. Viacom is still suing YouTube, even as basically the entire legacy entertainment industry relies on YouTube as a tremendous marketing and distribution tool. Imagine if the RIAA's plan was in place in YouTube's early days?
Google has announced that it intends to develop and deploy technology to eradicate links to child pornography images from the web. Certainly similar technology can be used to remove links to other illegal content.
The legacy players have trotted out this line for years, and it's no less ridiculous than it's been every time in the past. There is no "fair use" for child porn. There is fair use for copyright-covered content, and the ability to build up tools (like YouTube) that take advantage of fair use is shown to have a tremendous impact on creating useful and innovative new tools and services for the industry
and the public alike. The RIAA's belief that Google can magically stamp out infringement shows a fundamental misunderstanding about how copyright works -- or (more likely) a general condescending attitude towards fair use.
Also, Google has tools in its Chrome browser to warn users if they are going to sites that may be malicious. Shouldn’t that technology be used to warn users of rogue sites?
Except there's a major difference. People don't want to go to malicious sites. Google is doing its users a favor there. When users want to go to access unauthorized content, putting up a warning page goes against their wishes and pisses off users. I recognize that the RIAA has spent decades believing that pissing off users is a viable strategy, but that might also be why they've shrunk so much, while companies that respect their users have grown.
Or better yet, can Google use similar technology to highlight or identify sites that are authorized? Imagine if links to content on legitimate sites were labeled – directly in the search result –with a certification mark indicating that the site is licensed and actually pays royalties to creators. That educational message could have a profound and positive impact on user behavior.
Again, not the problems above concerning perfectly legitimate search results that are not about getting access to the actual content. They would get punished under such a system. Furthermore, this assumes that the problem is "education." That people just don't know where to go to get authorized content. There's little indicating this is true.
Finally, beyond the issue of annoying clutter on Google's interface at the behest of a single industry, you have to wonder where heading down that path lies. If the record labels and movie studios get it, what about luxury brands? I'm sure Louis Vuitton would love to be able to get a special mark on search results it likes. Or, how about the Associated Press? Perhaps it wants a special mark on news publications it "approves." Suddenly lots of other legitimate sites are left out in the cold.
Either way, we've been running around seeing the RIAA and MPAA do the same damn thing for a decade and a half now. It's always about blaming others for their own failures to give consumers what they want. Yet, when they finally do give consumers what they want, infringement tends to go down. Magic. Perhaps instead of continually looking around at who else they can blame for their own failings, they should spend a bit more time trying to innovate.