This is a map of some of Google’s government problems and lawsuits as of summer-ish 2010.
In part 1 , part 2 and part 4 of this series of posts, we looked at three of the four “changes” in Google’s piracy policies announced right after the Leahy-Hatch legislation (S. 3804) passed the Senate Judiciary Committee unanimously. (S. 3804 will have to be reintroduced in the 112th Congress to take its seats this week. The bill is widely expected to be reintroduced.)
My guess is that Google announced the list of “changes” on its Google Policy Blog in light of the government’s actions and the resolute prosecution of infringers and inducers taken by the Department of Homeland Security. Find the timing curious? And what are these changes supposed to accomplish? The changes address “….some bad apples who use the Internet to infringe copyright.” How many are “some”?
This post (the third of four) will review the “changes” in Google’s AdSense policy, an opportunity that affords Google a platform from which it could legalize a significant part of what makes Google such a problem–whether Google will seize that opportunity and accept both the responsibilities and the consequences remains to be seen. It will give them great social currency to do so, but it will cost them economic currency.
There are many inside and outside of government who believe that the only effective way to tackle massive online theft retroactively and prospectively is to dry up the ability of these rogue sites to profit by selling advertising or subscriptions. Thus, from a long-term law enforcement perspective, the most effective part of the DHS actions and the Leahy-Hatch legislation is the seizure of advertising and credit card accounts from the criminal defendants—accounts that would likely include some of Google’s AdSense “partners”–not just the seizure of the domain names.
Although Google’s Amen Chorus in the press and online have tried to focus attention on the government’s court-ordered seizures of domain names, seizing a domain name alone doesn’t do much to dry up the revenues although it’s definitely a speed bump, and may discourage some rogue sites from relaunching when combined with prosecution. The rogue site can soon pop up again—but drying up sources of revenue could be permanent, particularly if it results in the adserving companies actually paying attention to what their customers are actually up to.
This is also true of cutting off the credit card companies available to rogue sites using legitimate credit cards to fulfill the sale of illegal goods. This is not to say that the now stigmatized rogue site couldn’t find some adserving company or credit card company to prop them up, but the wheelmen are going to pay a higher vigorish commensurate with the higher risk, and therefore the margins are not likely to be what they were from good old AdSense. At least that’s how it works with other criminal enterprises.
Naturally, the Google Amen Chorus did not message this tacky greediness (which is not very Googley). Instead, we heard about first amendment concerns (which was probably rather insulting to Chairman Leahy and other members on the largely unchanged Senate Judiciary Committee who are staunch allies of free speech). These are not well-founded claims and are discussed in an excellent series of posts by Terrence Hart on his Copyhype blog.
We also heard about human rights concerns, including the strange letter from some legitimate human rights organizations that seem to have simply signed a letter to the Congress that had been lifted wholesale from a talking points memo previously released by the Center for Democracy and Technology—and which ignored the substantial history of human rights protections of the human rights of artists. These legitimate human rights groups are good people who seem to have fallen in with the wrong crowd and who tarnished, if not compromised, their good names—all to protect Google’s cash flow from advertising sales on rogue websites?
One could surmise that Google were then confronted by the reality that the Congress and law enforcement had heard all this before and were not impressed at all. These are criminal prosecutions—the defendants have all the defenses and due process available to them. Yet I’m quite confident that we’ll see some show trials possibly financed by you know who–directly or indirectly. (Can Charlie and the Poker Players be far away?)
But the recent government attention to rogue sites puts the downside of selling advertising to these enterprises on an entirely different scale. Particularly if your company is already under investigation for many things by many governments around the world. We are way past egging houses now. (See map above.)
Realize that there is nothing new about Google’s fascination with setting up AdSense accounts for rogue sites: As the Wall Street Journal noted in 2007 (reporting on a case that may date back to 2003):
“Instead of relying on spam emails to drive traffic to [EasyDownloadCenter.com and TheDownloadPlace.com], [these rogue sites] decided to rely on Google advertising. The high volume of traffic on EasyDownloadCenter.com and TheDownloadCenter.com caught Google’s attention, according to people familiar with the [case]. To help stoke the traffic further, Google assigned the sites account representatives who suggested keywords they could bid on. Google also offered [the sites] credit so they didn’t have to use their credit cards to pay Google’s fees….The defendants in the case, Brandon Drury and Luke Sample, said in sworn statements that Google representatives offered them credit to buy advertising on Google’s search engine. They also said Google supplied them with keywords, including terms such as “bootleg movie download,” “pirated,” and “download harry potter movie,” which boosted traffic to their sites, according to people familiar with the case. In court filings, both men deny any wrongdoing.” (Emphasis mine.) Of course–this case settled.
Well…don’t be moral, ya’ll.
Yet there is nothing like a criminal prosecution to focus the mind, except maybe a RICO criminal prosecution. (It is important to note that Google Adsense is not the only adserving company implicated in the investigations and legislation, but given Google’s dominant position in online search advertising worldwide, it should not be surprising that Google is not only genericized for “search,” it is becoming genericized for the unholy alliance of rogue sites and adserving companies served by commercial search. Instead of “I googled it again” you may hear “I got googled again”.)
The Wall Street Journal also tells us that “[a] Google employee deposed in the [Easydownloading] case largely corroborated the defendants’ accounts, these people said. The Google deposition has been sealed by the court. [Or more likely, Google successfully moved to have the court seal the deposition because they didn’t want the admission used against them.] Of the $1.1 million in revenue the two sites — EasyDownloadCenter.com and TheDownloadPlace.com — generated from 2003 to 2005, $809,000 was paid to Google for advertising, the people said. The sites have since been shut down.” (Emphasis mine.)
Remember that in the 2007 case, Google said “Google said it prohibits advertisers from promoting ‘the sale of copyright infringing materials.’ It also said, ‘We are continually improving our systems to screen out ads that violate these policies.'” Of course–it’s not the advertisers who are the problem, it’s not the ads that are the problem, it’s the sites hosting the ads using Google AdSense accounts (or links, pop-ups or other connections to those ads designed to obfuscate the AdSense connection despite the “Ads by Google” logo). As Ellen Seidler found in her research, the advertisers trust Google not to impugn their brands (such as Deutsche Bank) by serving their ads to rogue sites–frequently without the advertiser’s knowledge or approval.
So–with all that in mind, here is the third “change” in Google’s policies:
“We will improve our AdSense anti-piracy review. We have always prohibited the use of our AdSense program on web pages that provide infringing materials. Building on our existing DMCA takedown procedures, we will be working with rightsholders to identify, and, when appropriate, expel violators from the AdSense program.”
Typically cautious and equivocating, Google says it will “improve” its “Adsense anti-piracy review”. Another post hoc gotcha, this statement would have you believe that there actually is an anti-piracy review to be improved at AdSense–apparently under review since 2003 in the EasyDownload case. Who knows what “improving AdSense policy review” even means. Plus–why just AdSense? Why not the Google-owned AdMob? And DoubleClick? Was Google permitted to acquire these companies so that they could better service rogue sites?
And even in the AdSense context, what exactly does “improve” mean? Doesn’t that imply that they actually were doing something in the past that they could be doing better in the future? Better credit terms for rogue sites perhaps?
As far as we have been able to determine, if there was any concern with AdSense policy it was only focused on the activity of the AdSense partner when the account was initially set up. (Aside–who wants to bet they stop using that “partner” word?) Unlike many other adserving companies, it appears that the AdSense partner is pretty much free to get an AdSense account for http://www.momsapplepiealamodedontyouknow.infous on one day and be thepiratebay the next.
Like so many of Google’s head-fake moves, this one actually raises more questions than it answers.
Having said that, a form has appeared in Google’s correspondence to complainers that (maybe for the first time) allows anyone to report a website by the URL of the website–not links within the website–because “[t]
Music Technology Policy 