Google’s Private Copyright Rule-Making and Algorithmic Enforcement

This chapter evaluates Google’s approach to copyright enforcement across its own platforms. Increasingly, Google self-regulates and negotiates with rightsholders to privately devise copyright rules. Google then deploys algorithmic regulatory technologies to enforce those rules. Indeed, over the past decade, Google has developed a range of algorithmic tools it uses to deter copyright infringement, enforce copyrights, and remunerate rightsholders. These activities limit transparency and accountability in digital copyright governance and privilege private interests and values over the public interest. In a digital environment dominated by powerful private actors, the use of algorithmic regulatory systems poses a critical problem for public rights and democratic, accountable systems of governance, now and into the future.

A Brief History of Digital Copyright and Google

This chapter provides important contextual information for understanding the influence of Google on copyright law and practice. It introduces the central objectives that define copyright law including both public and private interests. It provides a brief history of digital copyright politics, including the dominant interests and ideologies. This chapter also outlines Google’s origins and core business activities, search and advertising, as well as the reasons why Google is a unique force in the history of copyright.

Conclusion

When private companies negotiate and enforce copyright rules that determine the scope and application of copyright across large portions of the digital environment, do they have a responsibility to act in the public interest? In this chapter, it is argued that they do bear a responsibility to act in the public interest, and strategies aimed at ensuring copyright regimes operate in the interest of a broad range of stakeholders are enumerated. There are multiple courses of action available. Monopoly power can be addressed directly, by breaking up companies or by breaking down barriers to entry in digital markets. Or public interest responsibilities can be imposed upon the intermediaries that dominate the digital environment. Both pathways are viable options for lawmakers and activists seeking to curtail Google’s power and to secure public interest outcomes in digital copyright governance.

The Problems of Google News in Europe

In 2019, the European Union introduced a new copyright directive that provides news publishers a new right to be paid for the use of their works in the digital environment. The directive is squarely aimed at Google. Indeed, it is the latest step in a long history of European lawmakers seeking to regulate Google in order to support European news organizations. When navigating its way through the problems of Google News in Europe, Google has sought to appeal to the power of innovation, reframing disruption as opportunity, and doing everything it can to resist burdensome regulation. Indeed, the history of Google News in Europe shows Google leveraging its wealth, market power, and technological capabilities to compel and entice news publishers to work within Google’s system and according to Google’s copyright framework.

Google vs. The Copyright Tradition

This chapter provides an examination of Google’s US copyright case law, covering disputes over Google’s use, without permission, of copyrighted content in Google Search, Google Images, Google Books, YouTube, and its phone operating system Android. When resolving Google’s copyright disputes, US courts have considered the public benefits of Google’s services and have exhibited a willingness to limit private property rights in favor of the public interest in accessing information and content. These decisions have legitimized Google’s activities, and they have gifted Google private gains that fuel its information empire.

From Access to Monopoly

This chapter provides an evaluation of Google’s influence on copyright law and identifies the implications for the public interest. Google’s influence raises critical questions regarding monopoly power, accountability, transparency, and bias in digital copyright governance. From Google Books, to the issues over Google News in Europe, to private copyright rule-making and algorithmic enforcement, we have moved beyond narrow debates about access versus remuneration, even beyond Google’s “innovate first, permission later” heuristic. Today, the digital copyright debate is entangled with issues of accountability, transparency, due process, and concentrated private power in a rapidly evolving digital environment. Grappling with copyright under the influence of Google requires responding to issues that are complex, unstable, and inconsistent.

“Innovate First, Permission Later”

This chapter provides a thorough exploration of Google’s copyright policy agenda. The traditional approach to copyright assumes permission from rightsholders is required to use copyright subject matter, unless the law provides otherwise. Google challenges this assumption. Google views copyright law from the perspective of an innovator and submits that a “permission first, innovate later” approach to copyright chills innovation. According to Google, to ensure continued technological advancement, copyright must be limited. Google’s copyright policy framework prioritizes public rights to access and engage with information and content, including strong and flexible exceptions to copyright and limitations on liability. Underpinning Google’s framework is a philosophy that technological innovation is virtuous, supporting economic and social progress.

The Value and Function of Copyright

In a political debate dominated by private industries, the public interest in copyright law is often obscured. But the copyright debate matters to us all. Copyright impacts our daily lives, our cultural conditions, our experience of democracy, and the distribution of power in society. The conventional ideas and theories of copyright present copyright as a private property right. While these ideas and theories are not without merit, they are incomplete. They tend to narrow our understanding of copyright’s value and function and marginalize the public interest; and they fail to grapple with the full range of copyright stakeholders, the public in particular, but also stakeholders like Google who do not fit neatly into the private property orthodoxy.