If Google Claims It Is a Publisher and Search Results Are Its Own Speech Then Isn’t Google Illegally Favoring Youtube?

A Google Search for Ringo Starr’s “It Don’t Come Easy” returns a YouTube video as top result.  Try it at home but our experience shows for nearly any song the first result is a YouTube video.  If Google search results are as it claims “speech” isn’t Google favoring its own properties over competitors?  Isn’t Google leveraging its dominance in search to favor it’s video service? How is this any different from the EU antitrust case?  

I came across this blog by Barry Sookman in which he points out that Google, depending on the court case,  claims to be either a “publisher” and thus protected by various free speech statutes or is a “passive intermediary” and thus protected by various safe harbors.

Is Google, the operator of the world’s most popular search engine, a publisher entitled to the constitutional protections accorded to publishers of free speech? Or is Google a passive/neutral intermediary which has no control over what its search engine algorithms disseminate and which doesn’t publish the information in, or hyperlinked to, it’s search results? Google argues it is and is not a publisher, depending on which position will best exonerate it from legal demands including court orders that it de-index URLs and websites from which illegal content is made available.


While Sookman is mostly addressing the liability issues associated with defamation and unfair competition,  I would think this contradiction should be interesting to music rights holders.  If Google is a publisher isn’t it acting in an anti-competitive manner with its own speech in example above?

Why does this matter to artists?

  1. YouTube pays far less than Spotify or Apple Music. Artists would be much better off if the top search result were a better paying service, preferably one that wasn’t larded with unlicensed videos, and wasn’t owned by Google.
  2. The US antitrust division continues to persecute songwriting organization for having the potential to act in an anti-competitive manner (literally pre crime), while ignoring the (post crime) anti-competitive behavior of companies like Google.

This is what corruption looks like.  Now read this article if you want to understand how we got here: