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Copyright, Property and the Social Contract pp 227–239Cite as

Copyright According to Google

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Abstract

It is unsurprising that the world’s largest internet company, one built upon organising and providing access to information, finds itself centre-stage in digital copyright debates. Google has developed technologies and services that have transformed modern societies and economies by exploiting, harnessing and advancing digital information and communication networks. When doing so, Google has, perhaps by necessity, taken a view of copyright that differs from the one proffered by content industries. Media and entertainment industries pursue a private property-based model of copyright, seeking more rights and stronger enforcement measures, to control and monetise the digital environment. Conversely, Google argues for the importance of limiting the scope of copyright. Google sees exceptions and limitations to copyright as appropriately permitting some access and use of information—without requiring permission from and remuneration to copyright owners—in order to foster creativity and innovation. In copyright politics, Google has provided a countervailing voice, widening the terms of the debate. Yet, like the economic incentive reasoning employed by the content industries, Google’s innovation justification has neoliberal underpinnings. In copyright politics, the call for legal room for innovation is a call for ‘freer’ markets or less government intervention. Like other socially valuable features of contemporary society—such as the natural environment, health care and education—cultural and creative sectors are particularly ill suited to free markets. Policy-makers should be mindful of the inherent limitations of neoliberal policy proposals that call for a reduced role for governments in favour of ‘free markets’. Such proposals conceive of issues in narrow, economic terms and limit possible policy responses.

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Notes

  1. 1.

    The labour and personhood theories of copyright justify private property as a natural consequence of authorship. The labour theory of intellectual property is grounded in the Lockean theory of property rights. Locke proposed a person could obtain a right to property by applying their labour to goods held in common. See Locke (1821). The theory suggests, ‘[o]ur handiwork becomes our property because our hands -- and the energy, consciousness, and control that fuel their labor -- are our property.’ Hughes (1988), p. 302. The personhood theory of copyright suggests property embodies a person’s will and personality. See Hegel (2008). Private property is necessary ‘for self-actualization, for personal expression, and for dignity and recognition as an individual person.’ Hughes (1988), p. 330.

  2. 2.

    The incentive theory of copyright suggests, given the non-excludable and non-rivalrous nature of creative works, if protected from competition, authors will be able to exclusively sell their work and earn income, creating an economic incentive to create. Authors will make supply and pricing decisions based on their expectations of price-sensitive consumers, seeking a balance between high profits and high sales. Rational, self-interested participants in the market create a system efficiently allocating resources, to the benefit of all. See Landes and Posner (1989). Also Frischmann (2007), p. 666.

  3. 3.

    WIPO Copyright Treaty, signed 20 December 1996 (entered into force 6 March 2002).

  4. 4.

    Copyright Act 1968 (Cth) s40, s41, s42, s43, s41A; Copyright Amendment Act 2006 (Cth).

  5. 5.

    17 U.S. Code § 107.

  6. 6.

    Library of Congress U.S. Copyright Office 37 CFR Part 201 [Docket No. 2014-07] Exemptions to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies.

  7. 7.

    Tobias McFadden v Sony Music Entertainment Germany GmbH (C-484/14) [2016] ECLI-EU, 170.

  8. 8.

    For example, art 18.63 of the Trans-Pacific Partnership Agreement would require Vietnam, Malaysia and Brunei to increase the length of copyright term to the life of the author plus 70 years. Trans-Pacific Partnership Agreement, signed 4 February 2015 (not yet in force).

  9. 9.

    Lenz v Universal Music Corp., 815 3d 1145 (9th Cir, 2015).

  10. 10.

    To serve the more than three billion people using the internet today, information must be copied. For internet usage figures see International Telecommunications Union, Facts and Figures 2016 http://www.itu.int/en/ITU-D/Statistics/Documents/facts/ICTFactsFigures2016.pdf.

  11. 11.

    The Report of the Working Group on Intellectual Property Rights, ‘Intellectual Property and the National Information Infrastructure’ (September 1995) http://www.uspto.gov/web/offices/com/doc/ipnii/ipnii.pdf.

  12. 12.

    The White Paper delivered control through three key proposals. First, it proposed that a digital transmission of a work be categorised as a distribution of a copy. Second, it took the position that temporary reproductions made in the random access memory of a computer were reproductions subject to copyright. Third, it recommended making illegal any product or technology capable of circumventing a technical protection measure.

  13. 13.

    Boyle (1997), p. 135.

  14. 14.

    At the time, the White Paper was recognised as heavily biased in favour of content industries. It was produced by Clinton Administration staff with professional ties to the US content industries who reportedly ‘maintained extensive informal communications with private-sector copyright lobbyists’ while doing so. Litman (2001), p. 90. See also Samuelson: ‘Why would the Clinton administration want to transform the emerging information superhighway into a publisher-dominated toll road? The most plausible explanation is a simple one: campaign contributions. The administration wants to please the copyright industry, especially members of the Hollywood community, who are vital to the president’s reelection bid. And what this copyright industry wants in return is more legal control than ever before over the products they distribute.’ Pamela Samuelson, ‘The Copyright Grab’, WIRED (online) http://www.wired.com/1996/01/white-paper.

  15. 15.

    Information Infrastructure Task Force, ‘National Information Infrastructure: Progress Report’ (September 1993–1994) https://babel.hathitrust.org/cgi/pt?id=umn.31951d00269995v;view=1up;seq=13. For a more detailed discussion see Samuelson (1996), pp. 369, 379.

  16. 16.

    Litman (2001) p. 122.

  17. 17.

    Samuelson (1996), p. 373.

  18. 18.

    Ibid 435. WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, signed 20 December 1996 (entered into force 20 May 2002). WIPO describes the purpose of the treaties as ‘address[ing] the challenges posed by today’s digital technologies, in particular the dissemination of protected material over digital networks’. WIPO Internet Treaties, http://www.wipo.int/copyright/en/activities/internet_treaties.html . This language is revealing: the challenge identified was not ‘how best to take advantage of the economic and social benefits of digital technology and new forms of social dissemination of knowledge’ (for example) but rather the challenge for policy-makers was how best to preserve private property rights. And so the terms of the debate were set.

  19. 19.

    WIPO Copyright Treaty art 8.

  20. 20.

    WIPO Copyright Treaty art 11.

  21. 21.

    As Jessica Litman describes, ‘[a]t no time, however, until the enactment of the access-control anti-circumvention provisions of the DMCA, did Congress or the courts cede to copyright owners control over looking at, listening to, learning from, or using copyrighted works.’ Litman (2001), p. 176.

  22. 22.

    Stop Online Piracy Act H.R. 3261, 112th. Cong. (2011) and Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, S. 968, 112th Cong. (2011).

  23. 23.

    Anti-Counterfeiting Trade Agreement, signed 1 October 2011 (not yet in force).

  24. 24.

    Trans-Pacific Partnership Intellectual Property Rights Chapter Draft art 4.1 (February 10, 2011) http://keepthewebopen.com/assets/pdfs/TPP%20IP%20Chapter%20Proposal.pdf.

  25. 25.

    Google, ‘Public Consultation on the review of the EU copyright rules’, 1, 9, 7 http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/index_en.htm.

  26. 26.

    Harmon (2003).

  27. 27.

    Cohen (2014), p. 13.

  28. 28.

    Ibid.

  29. 29.

    At time of writing, Alphabet Inc. market capitalisation is over 500 billion USD, followed by Amazon at approximately 340 billion.

  30. 30.

    ‘Google’s mission is to organize the world’s information and make it universally accessible and useful.’ Google, Company Overview https://www.google.com/about/company.

  31. 31.

    Google Inc., Annual Report 2014, 2.

  32. 32.

    Google, ‘Google submission to ALRC discussion paper Copyright in the Digital Economy (ALRC DP 79)’, 1, 17 http://www.alrc.gov.au/sites/default/files/subs/600._org_google.pdf.

  33. 33.

    Google, ‘Public Consultation on the review of the EU copyright rules’, above n 25, 16.

  34. 34.

    Ibid.

  35. 35.

    Ibid 13.

  36. 36.

    Ibid 14.

  37. 37.

    Ibid.

  38. 38.

    Letter from Iarla Flynn Head of Public Policy Google Australia to The Hon Malcom Turnbull MP Minister for Communications, ‘Deregulation: Initiatives in the Communications Sector’ (17 December 2013), 5 https://www.communications.gov.au/sites/g/files/net301/f/webform/hys/doc/Google_0.pdf.

  39. 39.

    Google, ‘Submission to the Independent Review of Intellectual Property and Growth (UK)’ (March 2011), 4.1 http://webarchive.nationalarchives.gov.uk/20140603093549/http://www.ipo.gov.uk/ipreview-c4e-sub-google.pdf.

  40. 40.

    Ibid 4.2.2.

  41. 41.

    Ibid.

  42. 42.

    Letter from Matt Dawes Public Policy and Government Affairs Google Australia to Professor Jill McKeough ALRC, ‘Review - Copyright and the Digital Economy’ (30 November 2012), 1 http://www.alrc.gov.au/sites/default/files/subs/217._org_google.pdf.

  43. 43.

    Google, ‘Submission to the Independent Review of Intellectual Property and Growth (UK)’ (2011), 4.2.6.

  44. 44.

    Ibid 4.2.3.

  45. 45.

    Ibid 7.8.

  46. 46.

    Ibid 5.4.

  47. 47.

    Ibid 8.1.

  48. 48.

    Ibid 7.7.

  49. 49.

    Google, ‘Submission to the Copyright Review Committee Ireland’ (June 2012), 42 https://www.djei.ie/en/Consultations/Consultations-files/Google1.pdf.

  50. 50.

    Ibid.

  51. 51.

    Ibid 45.

  52. 52.

    Google, ‘Submission to the Independent Review of Intellectual Property and Growth (UK)’, Google, ‘Submission to the Independent Review of Intellectual Property and Growth (UK)’ (2011), 4.2.2.

  53. 53.

    Ibid 4.2.3.

  54. 54.

    Ibid 4.2.7.

  55. 55.

    Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006).

  56. 56.

    Ibid 1109. Google’s search engine uses an automated software program, the Googlebot, to crawl the internet and gather information about websites for its search index. The Googlebot scans websites; copying, analysing and storing website information on Google servers. The Googlebot stores textual information in the Google index and full copies of website’s HTML code in the Google cache. When a user conducts a Google search, Google’s technology searches the information stored on its servers and then directs users to relevant websites using hyperlinks. Cached copies of websites are also available for viewing. If a website owner does not wish to have their website included in Google’s index or cache, they can communicate this to the Googlebot by including HTML instructions in their website’s HTML code. The robots.txt code, as it is known, together with other meta-tags, can direct the Googlebot to exclude specific pages or the full site. Google, Googlebot Search Console Help https://support.google.com/webmasters/answer/182072?hl=en.

  57. 57.

    Field v. Google Inc., 412 F. Supp. 2d 1106, 1119 (D. Nev. 2006).

  58. 58.

    Perfect 10, Inc. v. Amazon. com, Inc., 508 F.3d 1146 (9th Cir. 2007).

  59. 59.

    Ibid 1165.

  60. 60.

    Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

  61. 61.

    Ibid 212. On 18 April, 2016, the U.S. Supreme Court denied the Authors Guild’s request for an appeal.

  62. 62.

    17 U.S.C. § 512(i)(1)(A).

  63. 63.

    17 U.S.C. § 512(i)(1)(B), (i)(2).

  64. 64.

    17 U.S.C. § 512 (c)(1)(A)(i) and 512 (d)(1)(A).

  65. 65.

    17 U.S.C. § 512 (c)(1)(A)(iii) and 512 (d)(1)(C) Similar provisions have been adopted in jurisdictions throughout the world, for example, in the European Union via Directive 2000/31/EC on Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market art 12–15.

  66. 66.

    Google, ‘Submission to the Independent Review of Intellectual Property and Growth (UK)’, Google, ‘Submission to the Independent Review of Intellectual Property and Growth (UK)’ (2011), 4.3.1–2.

  67. 67.

    Ibid.

  68. 68.

    Ibid.

  69. 69.

    Letter from Ishtar Vij Public Policy and Government Affairs Google Australia and New Zealand to Attorney-Gerneral’s Department, ‘Revising the Scope of the Copyright Safe Harbour Scheme’ (17 November 2011), 2 http://www.ag.gov.au/Consultations/Documents/Google.pdf.

  70. 70.

    Ibid.

  71. 71.

    Ibid 4.

  72. 72.

    Benkler (2003), pp. 1245–1276, 1272.

  73. 73.

    Cohen (2014), p. 9.

  74. 74.

    Ibid.

  75. 75.

    Ibid 14.

  76. 76.

    As Sunder observes, ‘[i]ntellectual property utilitarianism does not ask who makes the goods or whether the goods are fairly distributed to all who need them.’ Sunder (2006), pp. 257–1791, 259.

  77. 77.

    Doctorow (2014), p. 134.

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Authors and Affiliations

  1. Queensland University of Technology, Brisbane, QLD, Australia

    Joanne Gray

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  1. School of Law, Australian Catholic University, Melbourne, VIC, Australia

    John Gilchrist

  2. School of Law, Australian Catholic University, Brisbane, QLD, Australia

    Brian Fitzgerald

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Gray, J. (2018). Copyright According to Google. In: Gilchrist, J., Fitzgerald, B. (eds) Copyright, Property and the Social Contract. Springer, Cham. https://doi.org/10.1007/978-3-319-95690-9_11

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