The Trichordist

Americans are freedom loving people, and nothing says “freedom” like getting away with it….
Long Long Time, written by Guy Forsyth

Ari Emanuel spoke at the D10 conference recently which tells you something right there.  He has a far greater tolerance for bull than we do.

It’s probably easier to catch the engrained bias toward piracy amongst the Silicon Valley cognoscenti and the journalists who protect them when you are watching it on playback than when you are on the stage, take this for an example.

The most interesting reaction came from Mr. Emanuel’s statement about Google that boils down to what we all know:  Google’s business is in large part built on illegal stuff, including piracy.  (See Google drugs nonprosecution agreement antitrust claims in the US, Europe and South Korea; human trafficking complaints; Wi-Spy scandal in the UK, Germany, US, France, South Korea; major litigation losses in the Google Books and YouTube litigation; attempts to destroy unions; stockholder lawsuits for mismanagement by the 10 votes per share insider group that spent $500,000,000 of company money to stay out of a drug prosecution, etc.)

Mr. Emanuel said that Google filters child pornography with no problem because they can and because it’s the right thing to do–so there are limits to even what Google is willing to profit from.

Mr. Emanuel says that a comparable solution for content from illegal sites is also the right thing to do.  Google fails miserably to do so, to their great profit.  Mr. Emanuel would prefer that they did not.

Google’s answer was the usual “catch me if you can” that we have heard from Google for years as they profit from piracy.  What Google wants the creative community to do is take time–a lot of time–away from making movies, television shows, writing books and songs and making music and chase Google to stop them before they infringe again.

This is essentially the same losing argument that Google made to Judge Denny Chin in the Google Books case last week to try to force authors and photographers to sue Google individually and work by work rather than through their associations.  Judge Chin got it immediately—it’s not that Google wants hundreds of thousands if not millions of claims by authors.  It’s that Google’s bet is that they will only be sued by a handful who can afford it.

It seems clear that this is the same strategy Google has used for years–Google thinks this is the best way to get away with it.

I agree with Judge Chin that Google must hope that few of the authors and photographers  will have the ability to catch Google stealing and sue them for it.  This is the point.  And the argument didn’t work with Judge Chin and it didn’t work with Mr. Emanuel, either.  Nor should it work with any fair minded person.

Which is why Mr. Emanuel suggests that Google do the right thing, as Apple does, as Microsoft does, and as a host of other tech companies do.

According to the Hollywood Reporter, Sergei Brin’s sister-in-law, Google’s Susan Wojcicki responded thusly to Mr. Emanuel’s charge that Google profits from piracy:

Google [Senior Vice President of Advertising] Susan Wojcicki said: “I think he was misinformed, very misinformed,” Wojcicki responded Thursday at the D10 conference. “We do not want to be building a business based on piracy.”

While child pornography is easily spotted, “When I see content, I don’t know if you own the copyright,” she said.

First of all, Mr. Emanuel was not misinformed at all.  As we have seen again and again in many different examples across its advertising business, Google intends to profit from anything that is not nailed down.

As the Wall Street Journal reported earlier this year, senior Google executives aided and abetted the importation of controlled substances from Mexico, China and many other countries, drugs like human growth hormone, steroids and the abortion drug RU 486—and no one was misinformed about that, either:

[A whistleblower] fled to Mexico in 2006 and started an Internet pharmacy, selling steroids and human growth hormone to U.S. consumers through Google ads….”It was very obvious to Google that my website was not a licensed pharmacy,” [the whistleblower] wrote to the Journal. “Understanding this, Google provided me with a very generous credit line and allowed me to set my target advertising directly to American consumers.”

Posing as the fictitious Jason Corriente, an agent for advertisers with lots of money to spend, [the whistleblower worked with federal agents and] bypassed Google’s automated advertising system to reach flesh-and-blood ad executives. Federal agents created http://www.SportsDrugs.net, designed to look “as if a Mexican drug lord had built a website to sell [human growth hormone] and steroids,” [the whistleblower] said in his account of the sting.

Google first rejected it, along with an anti-aging website called http://www.NotGrowingOldEasy.com. But the company’s ad executives worked with [the whistleblower] to find a way around Google rules….Federal agents…[created a] site selling the abortion pill RU-486, which in the U.S. can only be taken in a doctor’s office.

By the end of the operation in mid-2009, agents were buying Google ads for sites purportedly selling such prescription-only narcotics as oxycodone and hydrocodone. Agents also got Google’s sales office in China to approve a site selling Prozac and Valium to U.S. customers without a prescription.

As a tape recorder ran, [the whistleblower] walked Google executives through the illegal parts of the websites. He said he told ad executives that U.S. Customs had seized shipments, for example, and that one client wanted to be “the biggest steroid dealer in the United States.”

“Suffice to say this was not two or three rogue employees at the customer service level doing this on their own,” said Mr. Neronha, the U.S. attorney. “This was corporate decision to engage in this conduct.”  [Mr. Neronha was quoted in a different Journal article saying that the decisions went up to Larry Page.]

Six private shareholder lawsuits have so far been filed against Google’s executives and board members, alleging they damaged the company by not taking earlier action against the illegal pharmacy ads.

Google has other potential legal exposure. Record companies and movie studios say Google willfully profits from illegal Internet piracy—an issue raised last week, when Congress dropped antipiracy legislation after opposition from Internet companies, including Google.

So you understand why Ms. Wojcicki and her brother in law would be very interested in diverting attention away from the many ways Google profits from piracy and other bad acts?   As Santa Clara Law School Professor Eric Goldman told the New York Times, “’How much of Google’s overall revenues are tied to product lines that are questionable?’ he said. ‘For investors, I think they just got a little bit of a jolt [after Google reserved $500,000,000 to pay its forfeiture in the drugs case] that maybe Google’s profits are due to things they can’t ultimately stand behind.’”  (Emphasis mine.)

If Google’s complicity in the drugs case went all the way to Larry Page as Mr. Neronha has stated, you have to wonder if Ms. Wojcicki herself—a senior Google advertising executive–was on those whistleblower tapes.  There’s currently a valiant shareholder lawsuit by a pension fund being heard in Delaware where these outsiders are trying to find out what Google’s insider team is up to–and remember that the insiders shares get 10 votes per share to the outsiders one vote per share–so the only way the outsiders can have a say in the corporation’s governance is to sue Google because the insiders can simply ignore the outsiders.

Exhibit A?  Google’s drug prosecution.  Google’s drug problem resulted in one of the largest forfeitures in US history–$500,000,000 of the stockholders’ money paid in a curious deal to keep executives from being indicted.  And for which Google is currently being sued by its stockholders in six separate cases.

So naturally, Ms. Wojcicki is motivated to divert attention away from Google’s addiction to piracy.

And…

Ms. Wojcicki says that when Google sees content online they don’t know who owns the copyright.  Just like they didn’t know the drugs were illegal?

And the decision—the decision that a human makes—when they see a red flag is to let the drugs be sold or the copyright be duplicated, or the mail order brides to be sold.  Or provide a link to someone who is allowing it to be happen because it profits Google to so do.

Just like the drugs case, it is hard to believe that piracy on a global scale all happens without any human interaction by Google employees.

But this just doesn’t ring true.  Google has acknowledged receiving five million DMCA notices last year alone, and over three million the year before that.   Don’t you think that if someone tells you five million times a year that you are doing something wrong there might be some truth to it?

Imagine if a CD or DVD duplicator decided—decided—not to inquire as to whether someone who wanted to use their services had the right to do so.  They would certainly make a lot more money for a while.  But they would be headed straight to jail in the long run.  This is why duplicators require considerable proof before they allow their facilities to be used to create copies of what are obviously works of copyright.

So all Mr. Emanuel is asking is that Google do the right thing.  Show that they are a reliable business partner, show that they can be trusted with content.

According to Ms. Wojcicki, we are a long, long way from anyone at Google doing the right thing.  Because nothing says freedom like getting away with it.

So let’s all remember that.

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