CMU Trends Digital Labels & Publishers Legal

Trends: The Google dimension

By | Published on Thursday 6 March 2014


Google has been high up on the music industry’s piracy gripe list for a few years now, so recent calls from the music rights sector for the web giant to be more proactive in this domain are nothing new, though interestingly Google subsidiary YouTube now also seems to be under fire, despite it having generally avoided too much rage in the past (outside of Germany at least).

What the music rights companies want from Google is pretty simple. They want the web giant to automatically stop every page and proxy associated with any website that has been confirmed as primarily a piracy operation from appearing in its search results.

The fact that Google could so effectively remove Rap Genius from its search engine when it emerged that the lyrics site was violating the web firm’s own SEO rules late last year demonstrates that the web company can act when it wants to. The problem for the record labels and music publishers is, when it comes to using this tactic to combat piracy, Google doesn’t want to play ball.

For the music rights sector, which has tried a plethora of tactics for battling online piracy over the last fifteen years, Google remains a significant problem. Obviously piracy can never be stopped outright, but many labels and publishers still believe there are benefits to putting hurdles between web-users and unlicensed sources of content, in a bid to make legit music services more attractive.

In those jurisdictions where the courts have complied, which includes the UK, so called web-block injunctions are now seen as the key tool in fighting piracy, whereby a judge orders the ISPs to do what they can to stop consumers from accessing sites which have been deemed liable for rampant copyright infringement, so operations like The Pirate Bay and KickassTorrents.

The problem is, as soon as domains are blocked by the ISPs, proxies are set up to enable people to circumvent the blockades, and those proxies soon appear high up in Google searches for the infringing services, and often in searches for artist names too.

The music rights owners can serve Google with takedown notices for individual URLs utilising the takedown system the firm operates to comply with American copyright law, but that’s a labour intensive process when new links are going online all the time. Google, the rights owners argue, should proactively block such links as a matter of course.

Although Google has made various promises in recent years to prioritise legit content sources over those of unknown legitimacy (promises which have come to little, the labels claim), the web giant has always insisted it cannot be the policeman of the internet. After all, file-sharing networks will always be distributing some content legitimately, and what gives Google to right to block that distribution because some (probably most) files on that network are infringing copyright.?

It is an argument with some merit. After all lots of totally legit websites occasionally infringe by mistake, or as a result of automated or user-upload functionality, and if Google started instigating website-wide blocks on any site that occasionally infringed, there would be a lot of collateral damage. And, indeed, a lot of Google’s own sites would have to be blocked.

However, the music rights owners would argue that – while site-wide search blocking does need to be carefully handled – if a court of law has deemed a site to be sufficiently liable for copyright infringement that it is happy to order ISPs in its jurisdiction to block access to said websites, surely that should be enough for Google to likewise take action?

After all, if the infringing site had good reason not to be held liable for the infringement it had contributed to, it could present its case in court (albeit within its means, some legit operations couldn’t fight copyright battles in courts worldwide).

Google, however, is unconvinced. It remains to be seen if the music rights companies can force a rethink. Certainly Google’s role in combating piracy has been high up on the list of things the music rights lobby has been campaigning for of late in the political domain. Though politicians to date have been wary of making demands of Google on piracy; perhaps the web giant’s tax affairs and market dominance are higher up the ‘to do list’ of the average minister and civil servant.

Mike Weatherley MP, IP Advisor to David Cameron, told CMU last month that he is currently working on a paper on Google’s role in copyright protection online. Though, he added: “I am not comfortable about asking Google to be the policemen – it is not them who are distributing the illegal content – but they do have a role to play in directing people to legal sites and should be part of the informing and educating agenda. But as always, I would prefer government not to introduce measures by force; that should only be a last resort option”.

The other option open to the music rights owners would be tag Google onto the bottom of its next web-block injunction – if the courts can force the ISPs to block consumer access to a piracy operation, why not the uber search engine too? The French courts are ahead of the UK here, having passed a web-block injunction that also named search engines Google, Bing and Yahoo as defendants late last year.

And it seems that, in the main, the French versions of the three search sites have complied in removing the video streaming sites at the heart of that case from their search results. Though you can expect all three to fight future legal efforts to make such blocking the norm.

Despite the music industry’s fractious relationship with Google, its YouTube subsidiary has generally been on better terms with the labels and publishers. Well, not initially, but since it struck up its big major label deals in 2008. True, it took quite a bit longer to sign up the indies. And there was that time it fell out with Warner Music. And PRS. And it’s never been able to reach an agreement with German collecting society GEMA.

But all that aside, in the main YouTube is seen as being a good thing by most rights owners. After all, it’s one of the few companies that has successfully built an ad-funded free-to-access content platform that can deliver decent revenues for the labels.

And while some content firms would like YouTube to be more proactive in policing what copyright material gets uploaded by users, the site’s ContentID system to help limit un-approved uploads is industry leading. And, of course, through their alliance over Vevo, YouTube helped Sony and Universal finally launch a major label-owned digital platform that worked.

And, as reported in the January CMU Digest, by being half promotional platform, half streaming service, YouTube has become one of the most important digital channels for artists and labels in recent years. Which is possibly why – when so much debate was going on in the artist community over the royalties paid by Spotify et al – YouTube generally didn’t get mentioned, despite it paying out lower per-play fees than most of its competitors.

But at MIDEM earlier this year you sensed that the mood amongst the record industry was shifting. YouTube’s reps at the event certainly got a bit of hard time in the public debates. True, much of that focused on the technology that enables people to rip audio out of YouTube videos to get free MP3s, and why the video site wasn’t doing more to stop that kind of activity (it has done a bit, but not enough many reckoned).

But you did also sense that there was a growing resentment about the lower royalties YouTube generally gets away with paying, and its failure to attempt to move its massive freemium audience on to pay-per-view content.

Perhaps the audio streaming platforms, whose business models are really based around their subscription (rather than ad-funded) services, are starting to bemoan the impact the always-free YouTube is having on their endeavours to grow subscriber bases.

Of course labels can opt to only put their video content on Vevo, which does generally pay higher royalties. And behind the scenes YouTube is developing a more comprehensive audio service which, it seems likely, will have a premium subscription offer. So perhaps Team YouTube were just absorbing some of the Google rage in Cannes. Though it will be interesting to see how things develop.