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For the past year, both houses of Congress have been debating the creation of a law that would allow the government to block websites accused of piracy. In a Congressional hearing a few weeks ago, representatives seemed open to the idea, and a few suggested they might be open to asking search engines like Google (NSDQ: GOOG) to tweak their algorithm to eliminate pirate sites and favor authorized services. Today, Google General Counsel Kent Walker testified before the House committee on Intellectual Property, answering questions from members of Congress who seemed flummoxed that so many sites with pirated content come up in Google search results.
In Walker’s testimony, he said that Google would welcome additional legislation that cut off financial services and advertising support for “rogue” websites. But any legislation should be narrowly tailored and shouldn’t affect the notice-and-takedown system currently in place as part of the DMCA, which is working well, Walker added. Google did have concerns about any new law that might dictate search results, he added.
The committee chairman, Rep. Bob Goodlatte (R-VA), kicked off the questioning by telling Walker he and his staff had recently done searches for the term “watch movies online,” and was disturbed to find that one of the suggestions from Google’s auto-complete was “watch free bootleg movies online.” That led to “a results page full of infringing links,” said Goodlatte. “Why does Google suggest to users to watch bootleg movies online?”
Walker said the auto-complete results are “a reflection of how many users are trying to seek infringing content.” In any case, the company has already barred some terms from auto-complete that are closely associated with piracy. But for some terms it’s a tough call, because there are lots of legitimate uses as well, Walker noted. “If you put in ‘cheap’ or ‘free’, many of those are appropriate searches. Even ‘faux’ or ‘replica’… there are ‘knockoff’ dresses sold by Macy’s and Nordstrom’s.”
But other representatives sitting on the committee still couldn’t believe that Google, with all its engineering know-how, couldn’t create some kind of algorithm that would demote or eliminate infringing sites.
“It would seem to be feasible that those common search terms that are used to find pirated works on the internet — the results could be filtered out,” said Rep. Ben Quayle, (R-AZ).
Rep. John Conyers (D-Mich.) noted that Google did have success in getting child pornography out of search results and wondered why the same couldn’t be done of copyright infringing material. Walker responded that child pornography is easier to identify with filters, and Google also uses human review. It’s much harder to identify pirated material, since so much legitimate, licensed copyrighted material is also online, Walker said. In those cases, Google needs the help of rightsholders.
Rep. Howard Berman, (D-Calif.) said that the DMCA takedown process just wasn’t working. Even though Google has promised it will get to the point where takedowns happen within 24 hours, “in terms of a newly released movie, being up for 24 hours on a website can be a disaster,” said Berman. “Google has said it will do takedowns within 24 hours-but I do notice that the searches happen within seconds.”
One Congresswoman who really laid into Walker was Rep. Debbie Wasserman-Schultz (D-Fla.), who said she was concerned that searchers who type in the word “knockoff” come up with suggested search terms like “knockoff uggs” and “knockoff Coach.” She brought it up with Walker back in March, she said, but the problem persists. “As we discussed in my office, knockoff doesn’t really reference anything except trying to steal something that is someone else’s intellectual property,” said Wasserman-Schultz. “Your auto-fill brings up things that are not appropriate, and are facilitiating illegal content and illegal products… You’re Google. You helped overthrow the head of an entire country in a weekend. To suggest that this is too difficult for Google to accomplish… I think it’s more an expression of lack of will.”
Despite all these concerns, it’s hard to imagine legislation would get passed that would actually require Google to alter its search results. But the political heat over Google’s auto-complete in particular suggest that Google might be pressured into making major modifications to that product soon. Even though it’s an automated system, it just looks to people-including key policymakers-like it’s suggestions that are truly coming from Google.
John Morton, Director of Immigration and Customs Enforcement (ICE), testified about his organization’s program to seize websites accused of piracy-and faced tough questioning from one Silicon Valley politician. Morton touted his agency’s new “Operation in Our Sites” initiative, in which it has seized 119 domain names in the past year from sites that featured counterfeit goods, or offered illegal copyrighted content. “American businesses are under assault from counterfeiters and copyright thieves,” said Morton. “This is not a minor risk-it’s a serious risk. A risk calculated in the billions of dollars… We are not out to censor the internet, and we are not out to stifle free speech. We are a law enforcement agency out to stop and deter crime.”
One of very few politicians who has challenged the ICE seizures, Rep. Zoe Lofgren (D-San Jose), asked Morton how many of the owners sites he has shut down have actually been arrested. Morton said he’d get back to her. And Lofgren suggested that there should be a check on ICE’s power to unilaterally turn off websites. “Russia used pirated copies of software as an excuse to shut down dissident groups,” Lofgren noted-a fact revealed by an NYT investigation published in September. “There was, in fact, infringement going on, but they used it for political reasons. What do we have in place that would prevent the government from that sort of activity here?”
“We have a wonderful judicial system in this country,” Morton began. “We have a great sense of rule of law-”
But Lofgren cut him off. “Right now, this is an ex parte communication. You go to a magistrate, you say what you think-there’s nobody on the other side saying what they think. You get the order… you take it down. What constraint is there on you?”
Morton: “I have to demonstrate there is probable cause. The day we do [the seizure], you can walk into court and challenge that procedure, immediately.”
At that point, time was up; Lofgren told Morton she had “about five more pages of questions for you,” and will deliver them in writing.
Other witnesses who testified included Christine Jones of Go Daddy, and First Amendment expert Floyd Abrams. Jones basically complained that other internet companies don’t do as great a job as hers does of stopping infringing sites, and at times seem to allude to the fact that Google could do more-without quite saying it. For his part, Abrams spoke little, essentially chiming in that there’s no First Amendment problem with taking down sites that feature overwhelmingly infringing content.