Yesterday we detailed one of the main problems with the so-called “Transparency in Music Licensing and Ownership Act” or as Artist Rights Watch termed it “The Shiv Act.” The bill would take away from songwriters legal remedies like attorney’s fees and statutory damages. Thus making it virtually impossible for individual songwriters and small […]
[On June 27], the European Commission announced that Google has breached antitrust rules by manipulating search results to favor its own vertical search services. In a landmark decision, the EU antitrust enforcement body hit Google with a record fine of €2.42 billion and gave Google a deadline of 90 days to end all discrimination against rival services. We applaud the European Commission’s dedication to the issue and commitment to restoring competition in online search to the benefit of consumers.
Google ordered to cease anticompetitive practices
Google has been found guilty of engaging in illegal conduct with the aim of promoting its vertical search services. Although the decision addresses comparison shopping services, the European Commission has also recognized that the same illegal behavior applies to other verticals, including local search. To this end, Google has been ordered to cease abusing its dominant general search engine to give advantages to its own specialized search products. A similar order has the potential to neutralize the harm Google has inflicted to online search and to effectively address anticompetitive concerns over local search.
Why local search matters
Local search is one of the most important human behaviors on the internet. It is the bridge between online research and offline commerce. Local searches – people looking for a pediatrician in Munich, a hotel in Barcelona or a Thai restaurant in Copenhagen – comprise the largest single category of search, representing roughly one third of total desktop search volume, and over one half of smartphone search volume. Between the defaults on iOS Safari and Android’s pre-installed Chrome, Google enjoys a 98% market share on smartphones.
The European Commission has been investigating Google for seven years following a number of complaints by both European and US companies, as well as consumer groups. Yelp has been a complainant in the case and we have been engaging with the EU authorities providing evidence of consumer harm in the market of local search.
A little over 20 years ago, Grateful Dead lyricist John Perry Barlow penned a manifesto that served as the basic blueprint for Silicon Valley cyber-libertarian ideology for two decades. Premised on the notion that the Internet (capitalized here since Barlow definitely treated it as a space rather than as a tool for communication), freed from government interference and the application of laws, would produce a more perfect society in which disputes would be resolved through dialogue rather than force or mandate, he famously wrote in his 1996 Declaration of Independence of Cyberspace….While it may have been forgivable in 1996 to be unable to accurately foresee the role of the internet, it is unforgivable in 2017 to pretend that this is an accurate reflection of the world we inhabit…An internet of Backpage, of ISIS recruitment, of cyber-bullying, of phishing, of ransomware and revenge porn, of cyber-espionage, of trafficking in counterfeit and pirate content. Achieving an internet that captures its potential to enhance social, cultural and economic well-being requires more than self-governance, and is predicated on the technology neutral application of laws to internet-based conduct.
Fortunately, governments, policy makers and many non-governmental organizations are increasingly aware that it is long past time to jettison the baggage of Barlow’s cyber-libertarianism. In furtherance of this understanding, governments around the world have taken action to ensure the application of law to online behavior, all of which brings us around to the [now buried] headline—the recent decision of the Canadian Supreme Court in Google v. Equustek.
Google, channeling Barlow’s “we are everywhere and nowhere,” challenged the right of Canadian courts to issue an injunction that had effect in jurisdictions other than Canada. The Canadian Supreme Court quickly dispelled this, holding that: “Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates—globally.” In four short sentences, the Supreme Court of Canada turned Barlow’s “absence of borders” into a mandate for taking technology-neutral action in defense of its territorial sovereignty.
[Editor Charlie sez: Chris wrote this post in 2015 and it is worth reconsidering in light of the European Commission’s ruling that Google is an out of control monopoly.]
Anyone in the music business has felt Google’s boot on their throat in a host of ways. Set aside the millions of take down notices and the absurd YouTube ContentID system. Set aside how Google hides advertising revenue from its YouTube cash cow that should rightly go to the artists and songwriters. The Europeans are focused on a much simpler issue.
Google favors YouTube in video search results. We all know they do it and they’ve been doing it for years. Now there may be a chance to actually do something about it, at least in Europe.
As MTP readers will recall, the European Commission has pursued antitrust complaints against Google in Europe on behalf of price comparison sites and others that Google steals content from. Anyone in the music business is very familiar with Google stealing content in their various business lines–they do it to us all the time when they’re not driving traffic to pirate sites.
According to the New York Times:
[Google] may be the target of a series of new civil lawsuits that claim Google abused its market dominance to favor its own services over those of its rivals.
On Tuesday, Hausfeld, an international law firm [and US-based class action specialist] with connections to companies affected by Google’s activities in Europe, and Avisa, a European public affairs company that has represented complainants in the antitrust case, will announce that they have created an online platform [the Google Redress & Integrity Platform (GRIP)], to help companies sue Google for financial damages in European courts….
“So far, the focus has been on public enforcement,” said Laurent Geelhand, managing partner at Hausfeld, in Brussels, who declined to comment on the size of any potential civil damages. “But what’s still missing is how this has financially affected the victims.”
According to Reuters:
[T]he [GRIP] platform would build on the European Commission’s April charge sheet, which accuses Google of unfairly promoting its own shopping service to the disadvantage of rivals.
“GRIP offers corporations, consumers and other entities harmed by Google’s anti-competitive business practices in Europe a mechanism to evaluate their potential claims,” Michael Hausfeld, chairman of Hausfeld, said in a statement.
“It has been five years between the first complaint against Google and the EC’s statement of objections, which is about three times longer than the groundbreaking Microsoft case,” Jacques Lafitte, founder of Avisa Partners, said in a statement. “Google’s president, lawyers and publicists have worked well to create this delay. But Google has not been able to stop the inevitable: It finally faces justice.”
Yeah. What he said.
IMPALA have brought their own complaint with the European Commission which, as far as I know, is still in the hopper and has not been acted on as yet, although I’m sure it will be. Even so, artists and labels may wish to consider investigating the Hausfeld online platform to see if it would make sense for them to participate in any civil action against Google.
While Google’s potential exposure to a ruling against the company would start with a staggering $6 billion fine, that fine does not preclude civil lawsuits against Google by those it has harmed. While nobody takes paying a $6 billion fine lightly, does it really seem like it would be a lot of money to Google? And when you consider that Google have managed to drag out the adjudication for years already, it really seems rather like chump change. No pun intended.
We appear to have a law firm interested in at least helping potential plaintiffs bring these cases. Why not at least check it out?
U.S. music folk should be thinking that this may be their last chance to get justice from Google. The U.S. government has so far been unwilling to take action against Google, so this may be our only choice.
June 28, 2017, Toronto: Music Canada welcomes today’s landmark Supreme Court of Canada decision in Equustek Solutions v. Google upholding a ruling that Google can no longer provide search results anywhere in the world that point to a website that unlawfully sells the intellectual property of another company. Music Canada joined several other creative industry associations as interveners supporting Equustek in the case.
The case establishes principles that will guide the responsibilities of Internet intermediaries to reduce or eliminate harms amplified by their activities. In the case, Google admitted that it employs a team of more than 40 employees to remove search results to material that offend its company policies, but resisted a court order compelling it to do the same with respect to sites trafficking in goods created from stolen trade secrets.
The Supreme Court ordered Google to stop directing people to the illegal sites. It rejected Google’s approach of only de-listing individual pages within sites, which a lower court described as promoting a “Whack-A-Mole” approach to online infringement. It also rejected Google’s claim that, as a non-party, it was “immune” to court orders. It concluded that Google was “the determinative player in allowing the harm to occur” and suggested it had a “duty to assist the person wronged”.
Importantly, today’s decision also ensured that the order applies worldwide and across all of Google’s search engines, a crucial development given that the Internet has largely dissolved boundaries between countries and allowed virtual wrongdoers to move from jurisdiction to jurisdiction in search of the weakest enforcement setting.
In particular, the Supreme Court emphasized:
“The problem in this case is occurring online and globally. The Internet has no borders – its natural habitat is global. The only way to ensure the interlocutory injunction [order] attained its objective was to have it apply where Google operates – globally.”
The only way to protect the plaintiff was to prevent the search results from being displayed where they do the most harm: on Google’s global search results.
Last, the Supreme Court concluded that freedom of expression concerns raised by Google and its supportive interveners were at best theoretical. The speech contained on the sites did not engage any freedom of expression values, but rather violated multiple court orders. The Supreme Court found that “most countries will likely recognize… the selling of pirated products as a legal wrong” and that freedom of expression does not require Google to engage in “the facilitation of the unlawful sale of goods.”
Music Canada, together with the International Federation of the Phonographic Industry (IFPI), has been actively involved in this case since it was first appealed to the British Columbia Court of Appeal. Both the Supreme Court and the British Columbia Court of Appeal referred to their assistance in rendering their decisions.
“Today’s decision confirms that online service providers cannot turn a blind eye to illegal activity that they facilitate; on the contrary, they have an affirmative duty to take steps to prevent the Internet from becoming a black market,” said Graham Henderson, President and CEO of Music Canada. “This is welcome news for creators of all stripes who rely on the Internet as their primary market and for whom illegal online activity can instantly wipe out careers and destroy investment in new releases. Today’s decision provides a vital remedy to address illegal online activities and enforce the rights of creators.”
̶ Ends ̶
For more information:
Corey Poole, Music Canada
+1 (647) 808-7359
About Music Canada
Music Canada is a non-profit trade organization that represents the major record companies in Canada: Sony Music Entertainment Canada, Universal Music Canada and Warner Music Canada. Music Canada also works with some of the leading independent record labels and distributors, recording studios, live music venues, concert promoters, managers and artists in the promotion and development of the music cluster.
[Editor Charlie sez: In their hearts, they know they are criminals…Let the RICO games begin!]
After years of catering to copyright holders and their increasing demands, is Google about to go rogue in sheer frustration? According to a report by TorrentFreak, 2017 could well be the year Google throws its toys out of the pram, raises the Jolly Roger and takes to the digital seas in anger by launching its very own mega torrent search engine.
Over the last decade the copyright industry has been baying for pirate blood and have badgered Google for far broader search engine censorship to curb the growing piracy problem. In 2012 alone, Google removed over 50 million pirate search results that were infringing on the copyright holders’ content.
Guitarist Maxim Cormier says local radio station displayed a lack of respect
A guitarist from Cape Breton was shocked this week to discover his music was being sold online without his knowledge or consent.
Maxim Cormier of Chéticamp said a local radio station was offering track-by-track digital downloads of his songs for a fee.
“I had never given permission to them to do that,” said Cormier. “And I had certainly never received any payments for any of the sales.”
When Cormier found out, he called the police.