As The Guardian reports, the groups involved in the proposal include the British Phonographic Industry (BPI), the Motion Picture Association (MPA), the Premier League, the Publishers Association and a TV/film trade group called the Pact. The groups’ suggestions are spelled out in a nine-page document that became public after a Freedom of Information Act request.

The Piracy Problem

The entertainment groups say it is “trivially easy for UK consumers to find and access illegal entertainment content via search engines.”

On September 26 2011, BPI made test searches on Google for the name of each of the UK’s top 20 singles and albums, followed in each case by the word “mp3″ (the dominant legal and illegal file format for digital music). On average, 16 of the first 20 Google results for charts singles and 15 of the top 20 search results for chart albums linked to known illegal sites.

The report also cites a Publishers Association study that involved searches on both Google and Bing for the 50 bestselling books during the last week of April 2011. In that study, “Google returned an average of 41% non-legal links in the top ten (first page) results” and “Bing returned an average of 21% non-legal links in the top ten (first page) results.”

Search Engines Code of Practice

The report suggests a Code of Practice for search engines that includes the following:

• assign lower rankings to sites that “repeatedly make available unlicensed content in breach of copyright”
• prioritize (i.e., give better rankings/visibility to) websites that “obtain certification as a licensed site” for content downloading
• stop indexing websites that are subject to court orders and create “procedures to de-index substantially infringing websites”
• improve the “notice and takedown” system and ensure that searchers aren’t sent to illegal sites via suggested searches, related searches and suggested sites
• ensure that search engines don’t advertise illegal sites, place advertising on them, or profit from selling keywords related to illegal sites
• ensure that they don’t profit from selling mobile apps that “encourage infringement”

Google declined to comment to the Guardian.

The company faced similar pressure in December when the Recording Industry Association of America (RIAA) scolded Google and suggested that the company’s search algorithm be changed to better fight online piracy. Even Congress has discussed whether Google should favor legal sites in its search results.

Google did extend an olive branch of sorts in the U.S. when it launched the Google Music store in November. Earlier last year, Google also began removing some piracy-related terms from its Instant Search product.

SOPA and PIPA are supported by a range of corporate entities and media companies that elicited these draconian bills from Congress to address global IP piracy, copyright violations and the “rogue” sites allegedly responsible. (See Chris Sherman’s comprehensive run-down of SOPA.)

Somewhat ironically, CNET parent CBS Corp. is among the companies supporting SOPA. Indeed, many of the news outlets reporting on SOPA have corporate owners that support the measure. The full list is a veritable “who’s who” of American corporations.

Google has been a vocal opponent of SOPA/PIPA since the beginning. As the tide has turned against SOPA/PIPA  in recent weeks, support for the bills in Congress has waned. In addition, the White House just came out against SOPA and PIPA in their current form.

Google’s homepage link will be another nail in the coffin of these dreadful bills. But while they may now seem dead, rest assured that like a zombie this legislation will probably rise from the grave again in some modified form. There are too many powerful entities that want to see this legislation pass.

A couple of years ago, Piper Jaffray analyst Gene Munster calculated the value of a hypothetical ad placement on Google’s homepage to be worth between $4 and $5 million (at a $15 or $20 CPM) if it actually had to be bought.

Postscript: See our follow-up stories:

• Why The Web Is Going Dark Over SOPA & PIPA
• Google Blackens Its Logo To Protest SOPA/PIPA, While Bing & Yahoo Carry On As Usual

(Photo of U.S. Capitol licensed under Creative Commons from Flickr user natalie419)

In case the problem with implementation of a law against “objectionable” content isn’t self-evident its provisions are vague and scope extremely broad. The law includes a laundry list of concepts and content restrictions susceptible to highly subjective interpretation:

[The law implicates] anything that is “harmful, threatening, abusive, harassing, blasphemous, defamatory, pornographic, libellous, invasive of another’s privacy, hateful, disparaging, racially, ethnically or otherwise objectionable, relating to money laundering or gambling.” 

The law, which Google sought to modify before its enactment, is part of an effort to regulate morality and content on the internet in India, a country with an otherwise healthy free-speech tradition. But this law gives enormous power to both the government and to individuals to block or remove content that is subjectively disfavored for one reason or another.

Accordingly, the ability to criticize public figures and to engage in critical public discussion or debate over history and political or social issues is directly threatened by the law. Google and other internet companies originally opposed the law for logistical and liability reasons.

With more than 1 billion people, India is one of the largest potential markets in the world for Google, Facebook and other technology companies. But together with China (the largest market), US and European companies face challenging government restrictions and content censorship.

Here’s what the US Trade Representative said in February:

Baidu exemplifies the problem of online services engaged in “deep linking,” which provide links to online locations containing the allegedly infringing materials. The [notorious markets] list also includes numerous examples of websites involved in BitTorrent tracking and indexing, which facilitate the high speed transfer of infringing materials between users, as well as Internet markets involved in specific activities such as piracy of sports telecasts, Smartphone software and physical products . . .

Some of the other companies on the list included the Alibaba-owned Taobao (as mentioned), Pirate Bay, IsoHunt, torrentz.com, Allofmp3 clones and a range of other sites mostly based in Eastern Europe or China.

In July, however, Baidu “settled” with the big music labels and agreed to offer royalty payments and to “distribute licensed songs through its mp3 search service,” according to Reuters. This agreement has prompted the US to now take Baidu off the “notorious markets” list. Were Baidu not listed on the NASDAQ exchange it probably wouldn’t care what the US Trade Representative thought or did in all likelihood.

This issue of piracy and copyright infringement is in large part what’s driving the effort behind the now notorious Stop Online Piracy Act (SOPA). Chris Sherman has written an extensive discussion of the bill and its potential impact over on Marketing Land.

While its intentions are valid its methodology is overbroad and draconian. The fate of the bill is uncertain but there’s still a reasonable chance that it will come to a vote in the US House of Representatives. It still must make it out of committee however.

Unable to come to a vote last week, the House Judiciary Committee has another hearing on SOPA this morning.

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• What All Marketers Need To Know About SOPA – The Stop Online Piracy Act
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• If Google Was New York City & Online Piracy Was Knock-Off Handbags…
• Google Removes Piracy-Related Terms From Instant Search
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• Google Lawsuit: Our Links Don’t Violate Copyright

In a report card issued Monday, the RIAA takes a look back at four promises that Google made last year surrounding copyright protections on the web. Overall, Google gets an “Incomplete” grade. The RIAA admits that Google has “taken some modest steps” to fight copyright infringement, but spends most of its five-page report scolding Google for coming up short: “…the promises made by Google remain unfulfilled,” the report says.

One of the specific problems that the RIAA cites is search terms that encourage copyright infringement continuing to show up in Google’s Autocomplete search suggestions. The report card mentions a search for “lady gaga mp3,” which includes terms that “lead to illegal sites,” according to the RIAA.

In January — about seven weeks after making its promises — Google did begin to remove some piracy-related terms from Autocomplete.

The RIAA credits Google for acting more quickly to remove links to “infringing files” in its search results and on Blogger-hosted blogs to less than 24 hours. On the flip side, the report says the takedown time for pirate apps in the Android Marketplace still takes more than 24 hours and criticizes Google for not adequately screening apps before they appear there and for making money off these apps before they’re removed from the marketplace.

Among several requests, the RIAA wants Google to change its search algorithm to favor sites that offer content legally.

Sites that engage in infringing activity should not appear as the first results when searching for what entertainment content to download or stream. This just leads to more piracy and popularity of the site. Rather, whether a site is authorized or unauthorized to make copyrighted works available to the public should be a significant indicator in determining ranking of the result, with unauthorized sites having lower rankings than authorized sites.

And the RIAA isn’t the first to suggest such an idea. It came up early this year in the US House of Representatives during a hearing about online piracy.

There’s no mention in the RIAA report card of the recently announced Google Music service, which is essentially Google’s version of the iTunes Music Store (or Amazon MP3 store) and can be seen as an attempt to fight piracy by helping consumers find and buy music legally.

(Stock image via Shutterstock. Used with permission.)

UPDATE: Representative @DarrellIssa tweeted that the Judiciary Committee has scheduled the rest of #SOPA markup next Wednesday, Dec. 21 at 9 AM EST.

The delay is to allow more experts to weigh in with opinions and recommendations addressing technical, legal and first amendment issues.

SOPA proponents, including major content providers like the recording and motion picture industry, have argued that the new rules were necessary to combat “foreign” piracy and the sale of illicit goods like counterfeit pharmaceuticals.

SOPA opponents, including internet and tech giants and consumer and legal watchdog groups, say the proposed law is over-reaching, with the potential to “break” the internet and start a worldwide arms race of unprecedented censorship of the web.

If you’re involved with any type of online marketing, you should learn as much as you can about this proposed legislation, as the implications (mostly negative, unless you’re a large content provider or trademark holder) are huge.

Want to know more? Check out What All Marketers Need To Know About SOPA – The Stop Online Piracy Act over on our sister site, Marketing Land.

As you’ve no doubt read there are two pieces of anti-piracy legislation before the US Congress: SOPA and the PROTECT IP Act (“PIPA”). While their stated purpose is to prevent piracy, copyright and trademark violations in another sense they can be seen as media companies and others using legislation to protect their legacy business models.

SOPA has been widely written about and criticized. It’s now increasingly unlikely to pass in its current form — luckily. The less-exposed PIPA is equally bad in many respects and grants sweeping powers to private litigants and courts in the interest of protecting copyright owners’ property.

This explanation of what SOPA would permit comes from the New York Times:

Under the bill, copyright owners could direct payment providers like Visa and advertising networks like Google’s to cut off business to a Web site simply by filing notice that the site — or “a portion” of it —“engages in, enables or facilitates” intellectual property infringement or is being willfully blind to it . . .

If copyright owners could starve a Web site of money simply by telling a payment processor that the site was infringing on intellectual property, the bill could stymie legitimate speech . . .

Another provision would allow the attorney general to sue foreign sites that “facilitate” piracy, and to demand that domestic search engines stop linking to them and that Internet service providers redirect traffic . . . 

Despite the fact that SOPA isn’t law, a federal (district court) judge in Nevada named Kent Dawson is acting as though it is. Numerous articles have been written this week about his order to Google, Bing, Yahoo, Facebook, Twitter and others to  ”de-index” the domain names of literally hundreds of websites that luxury goods maker Chanel alleges sell counterfeit versions of its products.

Here’s the relevant portion of Dawson’s order (.pdf) regarding de-indexing:

The Group II Subject Domain Names shall immediately be de-indexed and/or removed from any search results pages of all Internet search engines including, but not limited to, Google, Bing, and Yahoo, and all social media websites including, but not limited to, Facebook, Google+, and Twitter until otherwise instructed by this Court or Plaintiff that any such domain name is authorized to be reinstated, at which time it shall be reinstated to its former status within each search engine index from which it was removed.

There are numerous procedural and jurisdictional problems with the case. In particular, Google, Bing, Facebook, Yahoo and Twitter are not parties to the litigation. The court has no jurisdiction or authority to order de-indexing of these allegedly offending sites. However, under SOPA it would have such authority to order social networks and search engines like Google to de-index sites without having formal jurisdiction over them.

The implications are pretty scary from a legal-due process standpoint and from a free speech perspective as well.

We reached out to both Google and Microsoft for comment and they offered official “no comment” statements. It’s in their respective interests to not comply with the court’s order. Doing so would validate the actions of a “rogue judge” exceeding his authority.

Postscript: Texas Republican Congressman Lamar Smith “blasted” Google’s opposition to SOPA as self-serving. However many of the bill’s supporters in Congress are responding to intense lobbying by commercial interests in the US such as the motion picture industry. The problem is not piracy, which everyone agrees is bad, but the potential authority granted private litigants and the courts on their behalf to seize domains, chill speech and shut down businesses, with limited due process.

The Google book-scanning class-action settlement in the US was rejected earlier this year by the presiding judge Denny Chin, who has given the parties until mid September to come up with a new settlement framework.

It’s possible that the Hachette agreement could serve as a model for the parties in the US:

There are several key differences between the French accord and the U.S. proposal that Judge Chin rejected. One is that Hachette retains control of which books can be scanned and sold by Google, just as it does with copyrighted works that remain in print. Under the U.S. proposal, Google would have been free to digitize any out-of-print books, unless the copyright holders expressly opted out of the settlement.

The central problem with the US settlement was the “opt-out” provision for out-of-print books: copyright owners’ material would be scannable unless they specifically opted out. According to Judge Chin’s order:

In the end, I conclude that the ASA is not fair, and reasonable. As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted an “opt-out” to an “opt-in” settlement.

Giving control over which books are scanned back to publishers, as in the French case, might well “cure” the objections to the US settlement agreement.

Related Entries

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• European Commission Wants 7-Year Limit On Google’s Digitization
• Going Head-To-Head With Amazon, Google Launches eBooks
• Google Makes Deal To Scan Some French Books
• Study: Google Book Search Doesn’t Hurt Publishers, May Help Them
• Photographers Group To Sue Google Over Book Deal
• Google Updates Google Book Search After Apple iPad Launch
• Science Fiction Writer Le Guin Launches Petition Against Google Book Settlement As Opt-Out Deadline Looms
• Google’s Schmidt To Book Settlement Critics: What’s Your Solution?
• Google Gives Some Ground In Books Row, France Moves To Protect “Orphans”
• Germany Challenges Google Book Settlement
• Microsoft, Yahoo, & Amazon Will Fight Google Book Settlement

As The Laboratorium reports, Google’s attorney Michael Boni told Judge Dennis Chin that both sides “have been aiming for an opt-in settlement.” That would likely please Chin, who specifically suggested when he rejected the original settlement in March that an opt-in settlement would be a good idea:

As the United States and other objectors have noted, many of the concerns raised in the objections would be ameliorated if the ASA were converted an “opt-out” to an “opt-in” settlement.

I urge the parties to consider revising the ASA accordingly.

The case dates back to 2005, when many authors and publishers sued Google for copyright violations when Google began scanning books and showing snippets of their content in Google search results.

Chin set another hearing in the case for September 15th and warned the two sides that he’ll assign a “relatively tight schedule” if the case isn’t resolved, or close to it by that date.

Stock image via Shutterstock. Used with permission.

The newspapers’ content has been removed not only from Google News (as desired) but the entire Google index. Now the newspapers are crying foul, saying that Google is “retaliating” against them for their legal victory.

On behalf of the newspapers an organization called Copiepresse sued Google in 2006 for copyright infringement. Copiepresse claimed that links to newspaper stories in Google News were hurting publisher traffic and ad revenues. Google lost the at the trial level and on appeal. Mountain View was ordered to pay daily fines of €25,000 for each infringement and day of non-compliance with the ruling.

Google is now required to get permission from publishers to index their content in Google News in Belgium. However Google has entirely removed the websites of the involved publishers from its index, asserting that the court order requires it.

The papers say they only wanted their content removed from Google News — not the Google search index entirely.

The Associated Press quotes a Google spokesperson who says, “the court decision applied to web search as well as Google News . . . We would be happy to re-include Copiepresse if they would indicate their desire to appear in Google Search and waive the potential penalties.”

It’s unclear whose interpretation is correct. But what is clear is that newspapers will suffer further traffic and revenue declines if their content and websites aren’t discoverable in Google search results.

Postscript: AllThingsD reports that Google has now re-indexed newspapers in the Copiepresse group. This is the right move and also a very self-interested one by Google. If it were to “punish” publishers that didn’t want to be included in Google verticals (e.g., News, Places, Shopping) antitrust investigators would use that as evidence against the company.

Related Entries

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• Google Asked To Pay $77 Million To Belgian Newspapers For Copyright Violations
• Obscure Belgian Case Threatens To Open Copyright “Pandora’s Box” For Google In Europe
• Google Appeals Belgium Newspaper Case Ruling
• Google Loses In Belgium Newspaper Case
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