Professor Peter S. Menell,1 University of California at Berkeley School of Law
August 24, 2012

On Aug. 10, 2012, Google announced its plan to integrate takedown notice data from copyright owners into its iconic Internet search algorithm.  Google was responding to the fact that searches often ranked links to unauthorized works high in its search results.

Is Google’s tweaking of its search algorithm technological progress?  Censorship?  The major content industries applauded the move.  Some scholars and civil liberties groups expressed alarm.

Ever since Napster’s meteoric rise and fall, a chorus of scholars and cyberlibertarians has decried the “chilling” effects of copyright enforcement on technological innovation.  They have lamented the shuttering of peer-to-peer platforms and warned of grave adverse effects on digital technology advances and freedom of expression.

As I have previously observed,2 these concerns, while plausible, rest on a questionable and unbalanced foundation: (1) that unfettered technological innovation is unambiguously good for society; (2) that the relationship between copyright liability and technological innovation is uni-dimensional – that is, a greater risk of liability for infringing activity is inversely related to the quantity of technological innovation; and (3) that immunity from copyright liability would better promote technological innovation, as well as freedom of expression and social welfare more generally.

Technological change is rarely without downside risks; nor is it uni-dimensional.  Society does not just want automobiles; we want safe, non-polluting automobiles.  Similarly with respect to information dissemination technologies, the proper framing should recognize society’s multi-faceted interest in promoting technological advance, expressive creativity, and freedom of expression.  As Bruce Springsteen poignantly implied, what good are “57 channels” if there’s “nothin’ on”?

Technological change comes in many flavors.  The automobile greatly expanded human horizons, but it also expanded accident risk, exposure to airborne lead and other lower atmosphere pollutants, and climate change.  Tort law, product regulation, and environmental regulation have sought to internalize these costs and risks to achieve a better overall social balance.  These influences have spurred technological advances, such as safety belts, collapsible steering columns, airbags, catalytic converters, hybrid engines, and electric cars.

It would be disingenuous to suggest that these regulatory regimes have “chilled” innovation.  The natural and appropriate path for technological progress is to integrate the broader social concerns into innovation.  The evolution of automobile technology bears this out.

Analogously, the development of peer-to-peer technologies facilitated file distribution on computer networks – a good thing – but also unleashed rampant, unauthorized distribution of copyrighted works – a bad thing.  Social regulation – principally in the form of copyright liability – has encouraged technological advances to integrate social concerns into digital technology platforms.  For example, it spurred the development of filtering technologies (such as Google’s ContentID) for blocking the uploading of infringing content onto YouTube’s video sharing website.  This advance discouraged copyright infringement while channeling consumers into legitimate markets, which has rewarded Google (through its advertising vehicles), fueled investment in content development, and supported a robust and diverse video sharing platform.  These technologies, however, raise the specter of censorship of non-infringing works – a bad thing.  And that is the concern over changes in Google’s PageRank algorithm.

Is lowering the ranking of infringing links censorship or a step forward in encouraging investment in creative expression, newsgathering, and other vital purposes in our information society?  The answer lies in Google’s ability to distinguish between the valid and infringing sources of content.

Here is Google’s explanation for the change in its PageRank algorithm:

We aim to provide a great experience for our users and have developed over 200 signals to ensure our search algorithms deliver the best possible results.  Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site.  Sites with high numbers of removal notices may appear lower in our results.  This ranking change should help users find legitimate, quality sources of content more easily – whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify.

Since we re-booted our copyright removals over two years ago, we’ve been given much more data by copyright owners about infringing content online.  In fact, we’re now receiving and processing more copyright removal notices every day than we did in all of 2009 – more than 4.3 million URLs in the last 30 days alone.  We will now be using this data as a signal in our search rankings.

Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law.  So while this new signal will influence the ranking of some search results, we won’t be removing any pages from search results unless we receive a valid copyright removal notice from the rights owner.  And we’ll continue to provide “counter-notice” tools so that those who believe their content has been wrongly removed can get it reinstated.  We’ll also continue to be transparent about copyright removals. (posted by Amit Singhal, SVP, Engineering).

Google’s integration of copyright takedown notices into its PageRank algorithm, like its development of the ContentID system for YouTube, signifies an important step in harmonizing technological advance and the encouragement of expressive creativity.  It has the potential to promote freedom of expression by enabling those news and related organizations that invest in newsgathering and commentary to profit from their efforts.

This is not to say that there are not risks inherent in these shifts.  Google will need to be vigilant to ensure that copyright owners do not abuse the takedown process to discourage legitimate competition, abuse the fair use privilege, or suppress free expression.

We have good reason to believe that Google has the capacity to surmount this challenge.  The success of its search engine depends on consumers’ trust in its search results.  It maintains an active program to prevent distortion of its search results and will undoubtedly draw on that expertise in expanding its search rank criteria.  Improved transparency, as Google has provided in its Transparency Report, is vital.

Should takedown abuses become rampant, Congress or copyright regulators may need to enter the mix.  For example, there may be cause to increase the sanctions available for false takedown notices.  But as the past decade has shown, private concerted action offers a potentially more effective and sustainable pathway toward surmounting Internet governance challenges.  See Peter S. Menell, “Design for Symbiosis: Promoting More Harmonious Paths for Technological Innovators and Expressive Creators in the Internet Age.

In this highly dynamic area of technological progress, the mix of copyright protections, defenses, safe harbors, and remedies, as well as the design choices and voluntary agreements of technology and content companies, play a vital role in shaping the rate, direction, and adoption of technological advances.  Ideally, these mechanisms will promote symbiotic technological change – advances that are good for creators and distributors of information, as well as freedom of expression.  The shift in Google’s PageRank algorithm to integrate takedown notices begins a valuable natural experiment in how society can better balance the array of factors affecting technological innovation, expressive creativity, and freedom of expression.

As in other areas of technological progress, optimizing search engines to balance society’s broader interests will undoubtedly be an ongoing process.  Google deserves tremendous credit for its initiative to downgrade infringing materials in its search ranking.  The true test lies in the responses to this change and Google’s ability to implement this initiative effectively.