[Editor Charlie sez: The Oracle v. Google case is going to be the most important copyright case in a very, very long time. Oracle won the case on appeal twice and Google got the Supreme Court to review. The case is about two issues being copyright in software and whether Google’s taking of Oracle’s code is fair use and permissionless innovation. Because of the fair use argument, this is not just some battle of tech companies because no one knows better than us that Google will take any win on fair use and push it even farther.
So all artists, songwriters, photographers, film makers, authors–all of us–are in the same boat with Oracle on this point. Sure Oracle is a big company, but Google is an even bigger company with a trillion dollar market cap and Google is trying to roll over Oracle the same way they roll over us.
In a must read “friend of the court” brief, Helienne Lindvall, David Lowery, Blake Morgan and the Songwriters Guild of America make this case as independent artists, songwriters and labels all harmed by Google’s policies that are out of touch with the market starting with YouTube.
As Beggars Group Chairman Martin Mills put it, “[P]olicing the YouTubes of this world for infringing content is a herculean task, one beyond all but the largest of companies. For my community, the independents, it’s a game of whack-a-mole they can only lose.”
Independent creators rely on copyright protection to safeguard their works. This is true not just of songwriters and composers, but of countless creators, including recording artists, photographers, filmmakers, visual artists, and software developers. Copyright is, in fact, of existential importance to such creators, who would be utterly lacking in market power and the ability to earn their livings without it.
Google’s business model is a prime example of the need for strong copyright protection. Since Google’s founding, Amici have experienced, observed and believe that Google has used its unprecedented online footprint to dictate the terms of the market for creative works. By tying together a set of limited exceptions and exclusions within the U.S. Copyright Act and analogous laws in other countries, and then advocating for the radical expansion of those exceptions, Google has amplified its own market power to the great detriment of copyright owners. Thus, where fair use is meant to be a limited defense to infringement founded on the cultural and economic good for both creators and the public, Google has throttled it into a business model.
The Federal Trade Commission issued Special Orders to five large technology firms, requiring them to provide information about prior acquisitions not reported to the antitrust agencies under the Hart-Scott-Rodino (HSR) Act. The orders require Alphabet Inc. (including Google), Amazon.com, Inc., Apple Inc., Facebook, Inc., and Microsoft Corp. to provide information and documents on the terms, scope, structure, and purpose of transactions that each company consummated between Jan. 1, 2010 and Dec. 31, 2019.
The Commission issued these orders under Section 6(b) of the FTC Act, which authorizes the Commission to conduct wide-ranging studies that do not have a specific law enforcement purpose. The orders will help the FTC deepen its understanding of large technology firms’ acquisition activity, including how these firms report their transactions to the federal antitrust agencies, and whether large tech companies are making potentially anticompetitive acquisitions of nascent or potential competitors that fall below HSR filing thresholds and therefore do not need to be reported to the antitrust agencies.
“Digital technology companies are a big part of the economy and our daily lives,” said FTC Chairman Joe Simons. “This initiative will enable the Commission to take a closer look at acquisitions in this important sector, and also to evaluate whether the federal agencies are getting adequate notice of transactions that might harm competition. This will help us continue to keep tech markets open and competitive, for the benefit of consumers.”
The Special Orders require each recipient to identify acquisitions that were not reported to the FTC and the U.S. Department of Justice under the HSR Act, and to provide information similar to that requested on the HSR notification and report form. The orders also require companies to provide information and documents on their corporate acquisition strategies, voting and board appointment agreements, agreements to hire key personnel from other companies, and post-employment covenants not to compete. Last, the orders ask for information related to post-acquisition product development and pricing, including whether and how acquired assets were integrated and how acquired data has been treated.
The Commission plans to use the information obtained in this study to examine trends in acquisitions and the structure of deals, including whether acquisitions not subject to HSR notification might have raised competitive concerns, and the nature and extent of other agreements that may restrict competition. The Commission also seeks to learn more about how small firms perform after they are acquired by large technology firms. These and related issues were discussed during several sessions of the FTC’s 2018 Hearings on Competition and Consumer Protection in the 21st Century, and this study is part of the follow-up from those Hearings.
The FTC has a statutory right under the HSR Act to review acquisitions and mergers over a certain size before they are consummated, and the study will help the Commission consider whether additional transactions should be subject to premerger notification requirements. The orders will also contribute broadly to the FTC’s understanding of technology markets, and thereby support the FTC’s program of vigorous and effective enforcement to promote competition and protect consumers in digital markets.
The Commission vote to approve issuing the Special Orders was 5-0. Commissioners Christine S. Wilson and Rohit Chopra issued a joint statement.
This is an open letter regarding Google’s serious and abiding rejection of the law in Europe requiring payments for Google’s use of news clips. If you’re interested in being a signatory, details are here.
Google once again above the law?
This Thursday, October 24, should have been an important date in the history of the internet. With new European copyright protections entering into legal force in France, the press should for the first time be receiving fair compensation for the news content that it produces and is then spread on Google, Facebook and other major platforms.
As journalists we have fought long for this protection. Because quality news costs money to produce. Because the existing situation, in which Google enjoys most of the advertising revenue generated by the news that it rakes in without any payment, is untenable and has plunged the media into a crisis that is deepening each year.
The European Parliament voted for the copyright directive in March. The French parliament voted overwhelmingly in favour of enacting this copyright protection into French law in July, and this move is soon to be followed by parliaments in other EU states.
Yet the law risks being stripped of all meaning before it even comes into force.Slamming the door on any negotiation, Google has cynically offered the media a choice between two bad deals.
On the one hand, the media are asked to sign a blank cheque to Google renouncing any payment for the use of their news. This would mean accepting the slow death that is emptying newsrooms in Europe as it has already done in the United States.
On the other hand, media may refuse to do so, holding out for fair payment. But Google promises them a formidable form of retaliation: reducing the visibility of their news content to a bare minimum. No photos or text would appear when users search for their news. Just a snippet of a headline, no more.
That would be suicide for the press. Because before landing on any news site, most users are guided by the world’s dominant search engine: Google. Other search engines are just not big enough. News editors know this: they simply do not have the financial means to survive the resulting plunge in internet traffic.
Google is making a ridicule of the law. It is exploiting the subtleties of national law so as to thwart its spirit. Just as it has done with national fiscal laws so as to avoid paying its fair share of taxes on a global scale.It is a fresh insult to national and European sovereignty. Google wants to demonstrate the powerlessness of public authorities to regulate platforms, and force the media to bend to its will and accept a principle of receiving no payment for its news content.
Google prefers to paint itself as being magnanimous, boasting of the financing it proposes for innovative media projects, a diversion that amounts to crumbs from the table of a group that enjoys annual revenues of $140 billion.
Now that disinformation campaigns are infecting the internet and social networks, and independent journalism is under attack in several countries within the European Union, surrendering would be a catastrophe.
We call on the public decision-makers to fight back. They must strengthen the copyright laws to prevent Google from hijacking them, and roll out a battery of measures to stop Google from abusing its overwhelming dominance in the global search-engine market.
On our side, we are calling for public support and we will lead this fight because at stake is the survival of a diverse and independent media, and the strength of our democracy.
The first time I met with the French Minister of Culture, we met at their offices at the historic Palais-Royal complex which is also home to the Comédie-Française, the oldest active theater group in the world (founded in 1630). The French take their culture very seriously. One would do well to remember that in your dealings with them.
But of course, Google doesn’t give a rip about France, culture, French culture or the French Minister of Culture. And as predicted, Google are refusing to comply with the new European Copyright Directive as transposed into French law. (Once passed by the European Parliament, the Directive must be implemented at the nation state level–Google has no time for the nation state, either. The law goes into effect in France on October 24.)
Having suffered a spectacular loss in the European Parliament, the American multinational Internet company is now going to bring Silicon Valley justice to France.
Google said Wednesday it will not pay European media outlets for using their articles, pictures and videos in its searches in France, in a move that will undercut a new EU copyright law.
The tech giant said it would only display content in its search engine results and on Google News from media groups who had given their permission for it to be used for free.
The announcement, which will result in free content gaining higher visibility, comes after France became the first EU country to adopt the bloc’s wide-ranging copyright reform in July….Google had warned after the European Parliament vote that the change would “lead to legal uncertainty and will hurt Europe’s creative and digital economies.”
Of course what Google meant was that Google will do everything Google can to hurt Europe’s digital and creative communities because they’re pissed. Make no mistake, it’s not Google’s compliance with the law that is producing harm in France, it is Google’s refusal to comply that does so.
“A company, even a very large company, cannot get away with it when it decides to operate in France,” the French president insisted, during a visit to mark the centenary of the La Montagne newspaper in the city of Clermont-Ferrand in central France.
“We are going to start implementing the law,” he said.
According to Emmanuel Legrand’s excellent newsletter, Google is refusing to pay French news publishers for free-riding on their expensive news when delivered in Google’s massive monopoly on news aka search results:
French minister of culture FranckRiester was particularly incensed by Google’s decision. “I met with the head of Google News [Richard Gingras] this morning at the Ministry of Culture,” said Riester to journalists on the day Google made its decision public. “I sent him a very strong message about the need to build win-win partnerships with publishers and news agencies and journalists. The answer he gave me a few minutes later was stonewalling. This is unacceptable.”
Apparently this philistine from Silicon Valley not only has no respect for the law or the democratic process, he also has no respect for French culture. Be clear on this–the French law was passed in the European Parliament over Google’s unprecedented astroturf lobbying campaign AND it was passed at the national parliament IN FRANCE. The people were heard TWICE.
And if Mr. Gingras wasn’t insulting enough to Europeans and the French people from his cozy option-packed Silicon Valley enclave, he sure doesn’t know how to handle himself with the French minister of culture. Here’s a hot tip–the Peter Pan thing is not a good look outside the Googleplex paedocracy.
But understand this–as I predicted, Google has no intention of complying with the Copyright Directive and will dump as much money as it takes in legal fees, PR campaigns, fake news and astroturf until it has exhausted all possible claims, trials, appeals, lobbying, the works. Why?
Because THEY LOST AND THEY ARE PISSED. What you are about to see play out is what happens when the richest and most powerful media company in commercial history strikes back. What happens when the Silicon Valley company with control over the world’s newspapers says a people should know when they’re conquered. No blow is too low. And I keep saying, there’s only one thing they understand which is not fines. You can’t get fines big enough to hurt them.
What gets their attention is anything that affects their behavior–and that means injunctions or prison. They have no appreciation for anything we do to create music, movies, news, photographs, illustrations or any other work of authorship. For them, it’s there for the taking.
In a prescient 2008 book review (entitled “Google the Destroyer“) of Nicholas Carr’s The Google Enigma, antitrust scholar Jim DeLong gives an elegant explanation of Google’s thuggish behavior:
Carr’s Google Enigma made a familiar business strategy point: companies that provide one component of a system love to commoditize the other components, the complements to their own products, because that leaves more of the value of the total stack available for the commoditizer….Carr noted that Google is unusual because of the large number of products and services that can be complements to the search function, including basic production of content and its distribution, along with anything else that can be used to gather eyeballs for advertising. Google’s incentives to reduce the costs of complements so as to harvest more eyeballs to view advertising are immense….This point is indeed true, and so is an additional point. In most circumstances, the commoditizer’s goal is restrained by knowledge that enough money must be left in the system to support the creation of the complements….
Google is in a different position. Its major complements already exist, and it need not worry in the short term about continuing the flow. For content, we have decades of music and movies that can be digitized and then distributed, with advertising attached. A wealth of other works await digitizing – [news,] books, maps, visual arts, and so on. If these run out, Google and other Internet companies have hit on the concept of user-generated content and social networks, in which the users are sold to each other, with yet more advertising attached.
So, on the whole, Google can continue to do well even if leaves providers of is complements gasping like fish on a beach.
What you’re seeing in France is the onset of gasping.
The #MeToo Movement has been the beginning of a sea change for women, exposing the double standard between women and men in the workplace oftentimes resulting in abuse toward women. I was moved to tears by the walkout of 20,000 Google employees after the New York Times published an article detailing how the company protects its “elite men.” I lived through it first hand and I believe a company’s culture, its behavioral patterns, start at the top. Rarely do we hear about what happens to women after they are forced out of their jobs but I can tell you what happened to me.
Snapstreaks, YouTube autoplay, and endless scrolling are all coming under fire from a new bill, which is sponsored by Sen. Josh Hawley (R-MO), targeting the tech industry’s “addictive” design.
Hawley’s Social Media Addiction Reduction Technology Act, or the SMART Act, would ban these features that work to keep users on platforms longer, along with others, like Snapstreaks, that incentivize the continued use of these products. If approved, the Federal Trade Commission and Health and Human Services could create similar rules that would expire after three years unless Congress codified them into law.
“Big tech has embraced a business model of addiction,” Hawley said. “Too much of the ‘innovation’ in this space is designed not to create better products, but to capture more attention by using psychological tricks that make it difficult to look away.”
[Editor Charlie sez: Practically the same lineup that attacked Mississippi Attorney General Jim Hood for trying to make Google come clean about violating the Controlled Substances Act in breach of both their NonProsecution Agreement and their shareholder lawsuit settlement.]
“I’ve never seen pushback in such a fashion before,” Terry Schilling, executive director of the American Principles Project, told NBC News.
NBC News reports that:
‘Every one of those think tanks and advocacy groups is backed by Google, Facebook or both:
TechFreedom, a tech-focused Washington nonprofit…the Electronic Frontier Foundation, a tech-focused civil liberties nonprofit…Engine Advocacy, an organization that advocates for policies that help startups…the Computer & Communications Industry Association [the main trade association for Big Tech]…Those concerns were echoed by a litany of conservative and libertarian-leaning think tanks. Libertarian think tank R Street…the Competitive Enterprise Institute, another conservative think tank, the Cato Institute, the American Enterprise Institute, and Americans for Prosperity lambasted the proposal too, calling it “the latest potential disaster” that “would blow up the internet.”‘