A Congressional hearing  and a glossy new paper  published yesterday by the Motion Picture Association of America (MPAA) both underscore a major push by the copyright lobby to establish extra-legal “voluntary agreements” with search engines, similar to the “Copyright Alert”  surveillance machine already in place with some ISPs. These sorts of agreements represent a troubling move towards enforcement regimes  that have the speech-squashing capabilities of actual law, but not the corresponding due process or accountability.
These sorts of “voluntary” agreements generally get formed as a way for industries to avoid legislation, but that threat doesn’t seem to apply here. After all, the copyright lobby has already proposed legislation that could have required these kinds of blacklisting practices . That bill, SOPA, was roundly rejected.
The MPAA may wish to invoke the specter of further legislation, and is happy to cash in on its chairman’s reputation by reminding the public that he was recently a Senator, but that’s not enough to bring rejected proposals back from the grave. And without such legislation, the wrong voluntary agreements could run the entertainment companies afoul of antitrust law.
What’s more, there are plenty of reasons that Google and the other search engine companies might not want to spend much effort trying to satisfy the copyright industries. For one, it’s not clear that these industry groups will ever be satisfied with actions that Google could take. And because the costs are borne by others—namely the search engines that spend engineering time and resources accommodating the copyright lobby, upsetting their own users in the process—why should MPAA and RIAA members care if those actions are a waste of time?
That mindset is on display in the paper released yesterday , titled “Understanding the Role of Search in Online Piracy.” One section addresses the months surrounding Google’s recent change to its search results  to demote sites that had been frequently accused of infringement.
The MPAA, which pushed for that change, has now deemed it ineffective and wants further action. Never mind the real concerns about the lack of due process , or the harm to Google’s reputation from appearing to manipulate search results. The industry unapologetically asks for more.
And all of these demands come even as Google’s role in unauthorized downloading is shown not to be especially significant. Yes, Google provides a general-purpose search engine that can be used to retrieve all sorts of information—including information that is inconvenient to individual companies and organizations. But diminishing that function would have far-reaching effects for users, and even the beneficiaries of that change don’t stand to gain much. The MPAA’s own report says search engines “influenced” just 20% of browsing sessions that included infringement. The report doesn’t make an argument for what that number should be, or even acknowledge the diminishing returns of ramping up the policing of search results.
As SOPA’s rejection makes clear, the public is rightly unwilling to trade its access to an open Internet and powerful search tools for a possible reduction in the film industry’s costs.
Yesterday’s Congressional hearing, held by the House subcommittee that deals with copyright, also purported to look at the role of these “voluntary” agreements. As has become the standard , though, the witness list represented only one side of the debate. There were no representatives of Internet users or even of the search engines that could be charged with implementing these agreements. Instead, it featured testimony from director of the organization overseeing the Copyright Alert System, the CEO of the RIAA, and others.
Unsurprisingly, this group was in favor of reaching private agreements that mirror the provisions of SOPA. RIAA’s CEO Cary Sherman in particular was adamant on this point: he complained that the companies in his organization are required to send a takedown notice for each individual accusation of infringement, instead of being able to establish a blacklist of sites.
Perhaps the most telling remark, though, came from the CEO of the Internet Advertising Bureau, Randall Rothenberg. With these private agreements in place, argued Rothenberg, big companies are effectively able to “police” the Internet. For the legacy gatekeepers an unaccountable corporate police force regulating speech may sound like a good idea. For actual Internet users, it does not.