Is Google guilty of enabling piracy?

Last week's Backspin column on the United States government's attempts to extradite Richard O'Dwyer, a British citizen, to the U.S. to be prosecuted for "criminal copyright violation" for providing a website, TVShack.net (since shuttered by the U.S. Immigration and Customs Enforcement or ICE), that was an index of sites that hosted pirated television shows and movies got some great feedback.

A few readers argued that because O'Dwyer intentionally linked to pirated resources and made money from doing so he was guilty of something. Reader "johne37179" posted online:

"What is missed here is that the fence who disclaims all knowledge that he is selling stolen goods is still guilty as an accomplice after the fact. You can't reasonably expect to protect yourself if you don't take some reasonable steps to prevent being used as a conduit for stolen materials. Your protections may be inadequate, but at least you are not a willing partner in an illegal transfer. No one reasonably thinks that claiming naiveté ´o the likelihood of illegal traffic on your site should protect the facilitator."

BRUCE SCHNEIER: The Internet has created 'the largest trust gap' in history

While I see what johne37179's getting at, equating O'Dwyer with a fence is a weak argument at best. A fence is an "individual who knowingly buys stolen property for later resale, sometimes in a legitimate market. The fence thus acts as a middleman between thieves and the eventual buyers of stolen goods."

O'Dwyer was most definitely not a middleman in the sense of mediating transactions; he merely pointed in the direction of the stolen content without asking for payment for the pointing and didn't make money from the content; he only made money from selling advertising that was completely independent of the pirated material.

Several readers brought up the fact that because O'Dwyer knew that what he was doing was facilitating piracy, he was being unethical. I agree, he was indeed behaving unethically but no one goes to jail for not having ethics, they go to jail for the results of their lack of ethics.

So, were the results of O'Dwyer's lack of ethics enabling piracy? That's a tricky question. Obviously there's an argument that O'Dwyer was making it easy for people to find pirated content, but think about it: He wasn't actually encouraging piracy, he wasn't paying anyone to commit piracy, and he wasn't acting as a middleman for pirated content. He was just one of many entities providing a list of links ... along with the likes of Google, Bing and Yahoo.

Now, you might think the big search engines aren't knowingly and intentionally enabling access to pirated content, but the reality is that they do know they index pirated content and for them to argue, as they do, "what can we do, there's so much stuff we can't be expected to filter out the bad boys," is simply them asking to not be held accountable.

If you want to see that the major search engines make finding pirated content ridiculously easy just go to Google and search for downloads of the recent movie "Prometheus" excluding the trailers and anything from YouTube (try http://bit.ly/LY4hjY). When I did this I got 13.3 million results, and on the first page every single result linked to pirated content! How hard was that? I didn't even break a sweat.

For any of the search engines to find and remove indexed links to the majority of pirated content sites would be, presumably, to a greater or lesser extent, hard to do and therefore very expensive (as well as sending the search engines headlong into a legal minefield) ... but that's what is at the heart of the matter: money.

Given that both O'Dwyer and Google knowingly index links to sites carrying pirated material and both make money by showing ads, why would Google not be liable while O'Dwyer is?

To prosecute one but not the other would be decidedly unethical if what they are both most definitely doing -- providing links to sites that offer pirated content to make money -- is considered to be a crime. Just because you're one of the biggest and richest companies in the world doesn't absolve you of responsibility if what you're doing is, per se, considered criminal.

One of the first responses on the column was online from reader "Jerry13" who summed up the problem that underlies the whole case:

"This is yet another example of the MPAA/RIAA getting DOJ/ICE to violate the US Constitution and act as their illegal enforcer. [It's] like the Mafia getting the FBI to act as their strong arms in the protection racket. / So far several US appellate courts have ruled that linking is NOT a copyright violation. This is like the Megaupload case -- an example of malicious prosecution. / Copyright is in urgent need of reform. A good free paper is 'The Case for Copyright Reform.'"

The paper Jerry13 recommended was published by Member of the European Parliament Christian Engströ­¼¯a> (who is a member of the Swedish Pirate Party) with support from the Greens-European Free Alliance.

The introduction to "The Case for Copyright Reform" argues: "It is impossible to enforce the ban against non-commercial file sharing without infringing on fundamental human rights. As long as there are ways for citizens to communicate in private, they will be used to share copyrighted materials. The only way to even try to limit file sharing is to remove the right to private communication. In the last decade, this is the direction that copyright enforcement legislation has moved in, under pressure from big business lobbyists who see their monopolies under threat. We need to reverse this trend to safeguard fundamental rights."

So there we have it: If O'Dwyer is guilty so is Google, Bing, Yahoo, and every other search engine that doesn't actively search for and remove links they have indexed to sites offering pirated content. And, as a consequence, a guilty verdict on any or all of the parties will signal the end of a number of fundamental human rights. We ignore this issue at our peril.

Gibbs is in his judicial seat in Ventura, Calif. Your verdict to backspin@gibbs.com and follow him on Twitter (@quistuipater) and on Facebook (quistuipater).

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Comments

Rob

1

It should be noted that what Richard has done isn't considered illegal in the UK but it is in the US.
The main issue is trying to extradite a boy for something that isn't a crime in the country he has always lived, is a citizen of and where the website was based.

This is a case where the USA are trying to police the internet, apparently having a .com domain gives the USA rights to police any website it sees fit even though a .com is considered the standard.

If the US shut down every website with illegal content the entire internet would be censored, how many pictures are shared daily or videos shown on Google, Facebook and every other social networking site in existence.
Linking content to content is how the internet works, if the film industry wasn't so greedy and backwards they would work with network websites.

Netflix and spotify for example are a great start, cheap music/films for a reasonable monthly price.

My spotify account costs £5 a month and has over 1000 songs on my playlist after 6 months of use. On Itunes that would be the around £1000, thats nearly 2 decades of monthly fees in advance for songs I may listen to a few times at the most. Insane right?

Netflix is a great website for tv series at £6 a month but the content is years old forcing people to either pay insane amounts of money to get new shows, wait years or pirate them from other countries since most TV shows don't leave the US shores for a year after release.

Infact even when they are allowed at the same time the US get these shows a week in advance, a week on the internet gives the people behind enough reviews and news articles to ruin the plot and story for them.

Its not pirates that are the problem its companies that refuse to innovate and until the media realise that these companies are making record profits while claiming the "pirates" are killing the industry then nothing will change.

Rob

2

I forgot to add that I don't pirate content as I have spotify for my music needs but I see why people do it.

People don't pirate to be cheap, they pirate because the alternative is extortion.

Hydrans

3

I don't see how you can justify your argument in any moral, ethical or legal manner.

In short you are suggesting, that because the owners of the content make a decision that they are ethically, morally and legally entitled to make, on the supply, price and mechanism of delivery of their legally owned content, that it is somehow OK for a person that does not agree with the decision of the legal, ethical and moral owner of the content makes?

I personally call this theft, it is absolutely no different from walking into a movie theatre and stealing the reel of film (if they still use them), copying it onto a DVD, then taking it home?

By doing this, people all over the world are being forced to pay more for their content, eventually your anarchistic view will lead to the movie/audio/software companies, being unable to make money from their investments, which will lead to substandard releases of content for those thieves that you understand their need to do so.

Please don't try and justify stealing, especially because the person that is being stolen from sets a price that is higher than someone else is prepared to pay. This is the real world we live in, not every one can afford diamonds.

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