Recently Google announced an extension to its “Transparency Report“, which now also includes a section on requests to remove search results that link to material that allegedly infringes copyrights. Last month, Google processed 1,294,762 copyright removal requests by 1,109 reporting organizations, representing 1,325 copyright owners. The Figure below illustrates how the number of requests has increased between July 2011 to mid May 2012.

The growing number of removal requests points to the relevance of search technology as a means for copyright enforcement. Since for many Internet users what is not found by Google appears to be non-existent, removing search results from Google’s results lists is obviously a powerful tool for private copyright enforcement. However, several downsides are connected with such private copyright enforcement practices:

1.) While Google frames its removal reports as a matter of transparency, little is revealed on how exactly removal decisions are made. At the same time, the “Transparency Report” allows Google to counter allegations by content owners that it were deliberately soft on copyright infringers. In Germany, for example, Thomas Ebeling, CEO of the German media conglomerate Pro7Sat.1 Media, has recently criticized Google for profiting vom copyright infringement and was supported by Axel Springer lobbyist Christoph Keese. The latter criticized Google for linking to copyright infringing websites in its search results, while removing links to child pornography (see German blog post).

2.) The sheer number of removal requests implies using at least some technological/algorithmic approach. Similar to removals of (seemingly) infringing YouTube videos (see “The YouTube Copyright School” and “Private Negotiation of Public Goods: Collateral Damage(s)“), this automatization regularly leads to removal in case of doubt. Andre Meister, blogger netzpolitik.org, refers to the Google FAQ listing several “examples of requests that have been submitted through our copyright removals process that were clearly invalid copyright removal requests” (see also The 1709 Blog).

3.) The legal basis for copyright removals is the US “Digital Millenium Copyright Act” (DMCA), whose protection level is enforced by Google not only in the US but all around the world. Responding to Meister’s netzpolitik.org-report, Google justified this globalization of US enforcement levels with similar clauses in other jurisdictions:

While Google uses DMCA takedown procedures, this keeps us in compliance with local copyright law in many countries globally. For example, in Europe, intermediary liability is governed by the e-commerce directive, which, similar to the DMCA, provides freedom from liability for intermediaries who act expeditiously to remove infringing content once notified by a right owner.

4.) Investments in such filtering technologies raise the level of what courts can demand from search engine operators; smaller or new competitors face difficulties in abiding to such increasingly higher enforcements standards, making costly enforcement measures a competitive advantage for large players such as Google. Paradoxically, litigation pressure from rights holders may in the end even strengthen Google’s market dominance by reducing the number of firms being able to implement ever more sophisticated enforcement technologies.

5.) Given the importance of Google’s search index, removal requests may also constitute a risk for free speech online. In their comment on the report, the Electronic Frontier Foundation weighed in on this issue:

Although the burden of liability is supposed to be on the organization that sends the takedown notice — it is required to claim under penalty of perjury to have a good-faith belief of copyright infringement — in practice many groups are willing to skirt those rules, sending takedown notices to silence unfavorable speech or even without human review. The 3% of takedown notices that Google chooses not to comply with is a large absolute number, and each of those are instances of legitimate speech that would have otherwise been shut down.

Taken together, all five points underline Lawrence Lessig’s insight that “Code is Law“. Algorithms are regulation. Better enforcement algorithms in dominant search engines effectively raise the level of copyright protection without changing the underlying laws. I think it is a safe bet to predict that this technological layer of copyright is going to become more and more important – also as a field for political lobbying in the market arena. Facing increased resistance against further increasing copyright protection legislation, not least by the surging Pirate Party movement, pressuring platform providers such as Google or Facebook to improve technological enforcement measures constitutes a policy alternative for rights holders.

(leonhard)