I was reading a recent article in Forbes that struck me as somewhat indicative of the building fight between traditional closed and new open distribution models, and the evolution of copyrights in this new environment. The article focuses on a series of cases brought against Google by the producer of Perfect 10, and adult publisher. From Forbes:
and eccentric money manager Norman Zadeh claims he's lost $35 million on the
quarterly magazine Perfect 10 since launching it in 1997 to publish nude
photos of naturally endowed women and run self-penned screeds about world
affairs. A big chunk of that money is going to pay the lawyers.
Zadeh is the plaintiff in five lawsuits alleging unauthorized reproduction of the magazine's photos on the Internet. In his latest, filed in Los Angeles federal court, Zadeh accuses Google of ripping him off by storing and posting his photos on the big search engine's image search index and by linking to Web sites that are also stealing his photos.”
What’s kind of interesting here is that under a normal closed distribution mechanism, Zadeh would be right to try to recoup losses from such an activity. Google, as far as Zadeh is concerned, is like a television network, aggregating content and consumers and charging advertisers for the privilege of reaching those consumers. If CBS was providing access to a show in which the video was published without the appropriate clearance from the owner, they would be liable for damages. They received financial benefit from content to which they hadn’t received free and clear license to broadcast.
The reason for this is that in a closed network, CBS has complete control over the environment. They pick the content, select the advertisers, and broadcast the content over their partner’s networks. They control the entire supply chain, and as such, have complete control over what content travels through it. CBS couldn’t just claim ignorance to copyright infringement, or even if they did, it wouldn’t fly.
But Google is aggregating content around a search phrase in an open network distribution environment. Google doesn’t control the supply chain. They provide a consumer with a specific lens with which to view the network, but they don’t control production, distribution, or consumption. It is not Google’s job to police the system; in fact, policing the system would be practically impossible (people would just use a different search engine). The only way to satisfy Zadeh’s complaint would be for Google to confirm appropriate copyright license on every single piece of content to which they linked. That’s a tall order, even for the genius factory.
But this still raises some interesting questions… Where do those boundaries of control lie? Does partial control over any aspect of production, distribution, or consumption saddle you with regulatory oversight duties? When does a search engine become an aggregation point or a portal with enough control to demand regulatory oversight? What about Google Video in which users can publish content themselves? Are they supposed to check every piece of video to ensure legitimate license before making it available to the public? And if some illegitimate content does slip through, should they be held liable? What about Google Answers? What if a researcher provides access to copyrighted materials without attribution or compensation to the source? Is Google liable because they introduced you to the researcher?
Copyright enforcement in an open network ultimately boils down to control. Did the source of the illegal asset have any control over the production, distribution, or consumption of the content? If the answer is yes on any of those counts then the case for willful infringement increases. If the answer is no, then the case for willful infringement essentially evaporates. This makes suing search engines pretty difficult.
But the problem for content owners is deeper. In an environment in which anyone can re-aggregate content from any source and replicating the original is free and easy, the cost of enforcement is going to be significantly higher than any potential gain from litigation. All it takes is one kid in his bedroom reproducing and redistributing content to seed the network with a few copies of this copyrighted material. Once it’s out there, if it has value, it will be further redistributed (potentially even by individuals that have no idea that the original was “pirated.”) You may shut down the original source (at significant expense), but you still haven’t eliminated the file from the network.
The irony is that Zadeh is
essentially being punished for operating a closed network within the open
environment of the Web. Since Zadeh’s
site is paid, Google can’t crawl within it to find the images. Instead, it finds the dozens of illegal facsimiles. They get the traffic and the advertising
dollars and Zadeh gets the legal bill. Open network’s are a bitch, aren’t they Zadeh?