Acquisition Strategy Bolsters Google Copyright Stand, Says Counsel Hired from EFF

Google’s position has defied a view that “large uncertainty is great” for “large incumbents,” because they have the clout to cut their own deals with content producers that smaller competitors don’t, von Lohmann said in an appearance at Stanford Law School. “If we get a ruling that helps everybody, great,” he said. That’s what happened in the company’s defense of Web image search against allegations of infringement in the use of thumbnails of copyrighted pictures, von Lohmann said.

Meanwhile, though, Google continues “trying to do things voluntarily that make sense” -- “above and beyond what the law requires” -- to produce a “win-win” for itself, consumers and copyright holders, von Lohmann said. He cited YouTube’s Content ID system for identifying copyrighted video and music that’s posted. Rights holders “have a set of middle options” between attacking and acquiescing, and the large majority whose content is identified on YouTube choose “not to block” the material but “to monetize” by getting proceeds from ads placed against it, von Lohmann said. “That’s a great example of something that makes sense all the way around,” he said.

"The facts on the ground” disprove the contention that Internet service providers must be compelled to enforce copyright, von Lohmann said. The notice and takedown system under the Digital Millennium Copyright Act creates enough incentive, along with “a flow that allows the little guy into the game,” he said. But the Content ID system has yet to succeed as well as Google, YouTube’s owner, would like.

"You would love to have Hollywood films” on YouTube, von Lohmann said. “You would love to have music videos … licensed content from major providers.” He told us after his presentation that he disagreed with a Google business-development executive who had said the company shifted its copyright position, to take rights holders’ interests as well as consumers’ into account, in negotiating for video licenses.

In December, Google took further steps, von Lohmann said. The company announced that it’s seeking to act within 24 hours on takedown notices filed properly through new technology. It said it’s cracking down on ads supporting websites founded on infringement. “We will terminate these guys who are misusing AdSense,” he said. And Google wants to promote authorized users of copyrighted material against unauthorized challengers by making content samples available directly from search results, von Lohmann said. “Consumers are happy to pay” when offered attractive, licensed opportunities, he said.

"The emphasis for policymakers” the past 10 years “has all been enforcement” of copyright, von Lohmann said. Enforcement is important but not enough, he said. It’s also crucial to “make licensing fast, make licensing efficient,” to create many outlets for consumers to use, he said.

Von Lohmann said his “biggest surprise” in moving to Google has been finding that international copyright law is “incredibly important” to Internet companies and “in some ways more alive and current” than U.S. debates, von Lohmann said.

Trade treaties have been dealing with copyright since the WIPO Copyright Treaty of 1996, which became the “motive force” for the DMCA of 1998, von Lohmann said. “An international treaty powerfully shaped the Internet law we have today” in the U.S. The “odds are good” that the Trans-Pacific Partnership effort will take up copyright, he said.

"We have to pay a lot of attention to these trade negotiations,” to ensure that they include protections against copyright enforcement like those in U.S. and European law, von Lohmann said. Many Internet companies “depend on safe harbors” such as the DMCA’s notice and takedown system “for a degree of legal certainty,” he said. The protections are “absolutely critical” for Google and other “household names” online, von Lohmann said.

But “too often” on copyright, the U.S. Trade Representative has limited to movie studios and music labels the American companies whose business opportunities abroad the office promotes, von Lohmann said. That position “could very well end up harming the interests of American companies” if it isn’t broadened to include those of businesses such as Google, Facebook, Yahoo and Twitter, he said.

Many foreign countries are reviewing their copyright laws, often for the first time since the Internet’s rise, to deal with a “somewhat less than perfect fit” with online activity, von Lohmann said. A provision in Canada’s bill C-32 known as “the YouTube exception” would exempt from liability noncommercial remix videos -- “an interesting example of activity that has become more and more common” about which copyright law “often doesn’t know what to do,” von Lohmann said.

National laws also are under review in India, Russia and the U.K., the last looking into codifying fair use, “a very important U.S. doctrine that has allowed a lot of important activity,” von Lohmann said. “One of the most interesting things about the U.K. effort” is that the prime minister has brought up the value of force in promoting the country’s “innovation economy.” This is supported by the accomplishments including Web and image search by Internet companies in the U.S., where fair use has been justified largely on grounds of free expression, not economics, von Lohmann said.

In U.S. copyright law, “it’s the best of times; it’s the worst of times,” von Lohmann said. On the upside, the DMCA makes the rules “quite a lot clearer than a lot of other copyright laws,” while fair use provides flexibility to allow “innovative uses,” he said. “There is more negotiated peace breaking out than there was in 2001, when all you heard about was one lawsuit after another breaking out,” von Lohmann said. But there’s “still a lot of uncertainty,” and “people are ready, willing and able to go to court to litigate the uncertainly.”

"From a service provider’s point of view, we just want to know what the rules are,” von Lohmann said. A company that falls out of DMCA protections is thrown back into “a world of pseudo-common-law copyright norms” on secondary liability for infringement that “are quite difficult to parse in a particular case,” he said.

U.S. Internet copyright law is “fascinating” partly because “there are so few published opinions that everyone can make a big difference,” von Lohmann said. Unlike in other fields of law, a federal district court decision can take on great national importance though it isn’t binding anywhere else, because it’s the only ruling on a point, he said. “All of these cases matter,” von Lohmann said. That’s why Google has joined Intel, Microsoft and “the content folks” in filing amicus briefs in district court cases like those of MP3tunes, he said.

Google’s brief defending the company’s district-court victory in the YouTube case against a challenge by Viacom is due in early April to the 2nd U.S. Circuit Court of Appeals in New York. “Now you know what I'll be doing the rest of this quarter of 2011,” von Lohmann said.