By Hugh Stephens — 4.06.2019
In news coming out of Australia, it has been reported that Google has voluntarily agreed to de-index several hundred websites that distribute pirated audio-visual content. This will make it more difficult although not impossible for Australian consumers to access these sites. Village Roadshow Chairman Graham Burke, Australia’s most prominent anti-piracy crusader, has been reported as saying, with regard to Google, “We’ve gone from being enemies to being allies”. That’s quite a transformation.
Google has apparently agreed to voluntarily remove from its search engine results any sites that ISPs in Australia are required to block as a result of court orders under relatively new provisions of Australian law (Section 115A of the Copyright Act passed in 2015, updated in 2018). These amendments require internet providers to block websites identified by content owners (and ratified by a court order) that infringe, facilitate infringement or whose primary purpose or effect is infringement. In addition to an expanded requirement for action by internet providers (referred to as Carriage Service Providers in Australia), and new measures to prevent “site-hopping” by pirate sites, the 2018 copyright amendments also required search engines to block or de-index search results for sites subject a court order. Google fought long and hard against that particular amendment, without success. So why now the sudden change of heart? Has this been a sudden conversion on the road to Canberra? Or is it more of a tactical manoeuvre on Google’s part?
Google has been tenacious when it comes to legal challenges to its right to run its various businesses as it sees fit. In the case of the proposed amendments to Section 115A, Google (backed up by tech industry lobby group Electronic Frontiers Australia) argued that the there was no evidence that the existing law was deficient and claimed its own voluntary takedown process in response to complaints from rights owners was sufficient.
This prompted Graham Burke to describe Google’s efforts as a “sham”. Burke’s submission to the legislative review process claimed that; “Their sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft…Google auto complete and search are used to steal movies”.
Despite opposition from Google and some others, the amendment passed in the Australian Parliament last autumn, with broad bipartisan support. With the unexpected re-election of Scott Morrison’s Liberal government, there is no reason to expect that the decision to include search engines in anti-piracy remedies will be revisited.
At the same time, in the aftermath to the tragic shootings in Christchurch, New Zealand, in April the Australian Parliament passed(again with bipartisan support) robust legislation holding the executives of social media platforms, including Google-owned YouTube, criminally responsible (and the companies corporately responsible), if violent material is not removed expeditiously after notification by authorities. Meanwhile, the Australian competition regulator, the ACCC (Australian Competition and Consumer Commission) is proceeding with its Digital Platforms Enquiry. Its Preliminary Report was issued in December. Among its conclusions was the fact that Google and Facebook have market power, that there is a lack of transparency regarding the algorithms they use, and there is a risk they will favour related businesses or business interests. The Report continues that consumers lack informed and genuine choice regarding use of their data on these platforms, with serious implications for privacy, and that while news media and digital platforms have a symbiotic relationship, “The ubiquity of the Google and Facebook platforms and the lack of transparency of the operation of these platforms, have had adverse effects on news publishers and their opportunities to monetise their content”. There then follows a series of preliminary recommendations which, if accepted and implemented, would create a new regulatory world for the platforms. The ACCC is now digesting comments it has received with the final report due on June 30.
Needless to say, the sort of regulatory reach sketched out by the ACCC is not a world that Google would welcome, particularly since it is seeing efforts in Europe (Copyright Directive amendments that require licensing of news content and copyrighted material by platforms such as Google News and YouTube, among other measures) and the US to subject platforms such as Google and Facebook to much greater oversight. This is certainly part of the context to Google’s sudden newly cooperative attitude to rights-holders in Australia. Whether Google has truly become an “ally”, to use Graham Burke’s words, remains to be seen, but it would seem that Google has made a calculation that fighting all of the people all of the time is not a winning strategy. It is easier to offer to “voluntarily” comply by de-indexing sites than fight de-indexing orders in court, and probably lose in the face of the new legislation. At the same time, by taking voluntary action, Google retains some degree of control over how it implements the de-indexing, possibly heading off further court challenges.
This is relevant given Google’s experience in Canada in the landmark Google v. Equustek case. In that case, which I have written about in the past (here, here and here), Google was required by the British Columbia Supreme Court to de-index search results for a competitor of Equustek (a Canadian company manufacturing internet routers) found to have stolen Equustek’s intellectual property in order to market online clones of Equustek’s products. Google agreed to de-index results for its Canadian site, Google.ca, but refused a blanket delisting on Google.com and its other national sites as ordered by the court, and appealed. The BC Court of Appeal upheld the global de-indexing order. Google then appealed to the Supreme Court of Canada and lost. It then resorted to a series of legal actions in the US designed to invalidate the order and then have it varied in Canada pursuant to a California court order. These tactics failed (although Google was able to get an unopposed order in California that the Canadian Supreme Court order could not be enforced in the US), but they demonstrate the lengths that Google will go to in order to retain its ability to do what it wants in the way that it wants.
In the case of Australia, it appears that Google has agreed to voluntarily de-index sites only from its Australian website, Google.com.au. This is consistent with what it initially agreed to do in Canada in the Equustek case, and it does not appear that Google’s voluntary de-indexing will extend to its other search engines. The fact that it is not that difficult for Australian (or Canadian) users to get access to the main Google USA site (if you want to know how to do this, just “Google” it) means that the de-indexing block will be leaky and imperfect. However, it is a step in the right direction and will deter casual users, who comprise most consumers of pirated content. It appears that Google has concluded that half a loaf in Australia (agreeing to impose selective blocks on its Australian site only but keeping its ability to decide unilaterally on what it de-indexes globally) is better than none at all.
So perhaps this is not the “breakthrough” that rights-holders and content owners have been hoping for with regard to Google. Rather, it is a tactical retreat on Google’s part in a situation where Google is under political pressure and very much in the spotlight.
Nevertheless, it is a step forward for the copyright community.
Whether this sudden wave of cooperation from Google to fight piracy will be reflected in other jurisdictions, or world-wide, is very much an open question. It is almost certainly not a sudden conversion on the part of Google corporate management, but progress is often made one step at a time.
© Hugh Stephens, 2019. All Rights Reserved.
This article was first published here.