I wrote a piece last May about Google’s failure to punish “repeat offenders” on its Google Drive platform so I thought I’d give you another update. Despite having sent DMCA notices for 64 pirated titles (and having them all approved for takedown) the Google Drive account remains active and online, illegally sharing hundreds of pirated films. Note that I sent the DMCA takedown requests over several weeks to repeatedly report the same account holder.
On paper, Google claims to punish repeat offenders. This from Google’s own Abuse program policies and enforcement document:
Respect copyright laws. Do not share copyrighted content without authorization or provide links to sites where your readers can obtain unauthorized downloads of copyrighted content. It is our policy to respond to clear notices of alleged copyright infringement. Repeated infringement of intellectual property rights, including copyright, will result in account termination. [emphasis added] If you see a violation of Google’s copyright policies, report copyright infringement.
Yet in reality, the company does nothing. And, to make matters worse, while Google refuses to enforce its own policy, the account holder basically says F-you and replaces 57 of those pirated movies that were removed with new links to download via Google Drive and offline sites (mostly Openload.co).
The Google Drive account holder even created a convenient, separate folder (under zipped movies) where visitors can easily download the previously removed pirated films.
If Google had closed this Google Drive account it would have also closed the door on access to hundreds more pirated films. Given that the Google folks clearly have knowledge of this ongoing infringement–after all, its “team” reviewed the files for days before taking them down– why does it continue to get a free pass from liability via “safe harbor?” According to a Fenwick & West publication, “Your Safe Harbor Questions and Answers,” an entity must not only have a policy, but “reasonably implement” it:
What is a “repeat infringer,” and what must I do about repeat infringers? What should my “repeat infringer policy” look like? The DMCA is reasonably clear about the service provider’s obligation concerning users who repeatedly infringe copyrights: to be eligible for the safe harbor, the service provider must “adopt and reasonably implement, and inform subscribers and account holders of, … [its] policy that provides for the termination in appropriate circumstances of subscribers and account holders … who are repeat infringers.” (§ 512(i)(1)(A), emphasis added.)
Breaking that down into smaller bites, you must: Adopt a written repeat infringer policy; Notify users of that policy (posting it on your website, as part of your terms of service or “Copyright Policy,” is appropriate); and Reasonably implement the policy. The policy can be complicated, but it can be as simple as this: “It is [OSP’s] policy, in appropriate circumstances, to terminate the accounts of members [or users] who are repeat infringers or are repeatedly charged with infringement.” This is all that is usually required.
Of course I’m not an attorney, but anyone with common sense has to ask how does Google continue to get away with this? The answer appears to be because Google does what Google wants and there’s no entity to stop them. As the current administration has shown, sometimes there seem to be few repercussions in ignoring the law.
What are creators supposed to do in the face of this bad behavior by Google?
Lately tech’s shield of omnipotence in the U.S. has (finally) begun to crack, particularly in light of Facebook’s role in last fall’s election sham and the rampant dissemination of fake news across its pages. Meanwhile Google is under fire and financial pressure in Europe over its ongoing unabashed monopolistic practices . However, given the web behemoth is busy spinning its own false narratives and lavishing millions on our representatives in Washington, chances the company will be forced to change its monopolistic behavior in the U.S.–any time soon–remain dim. As Jonathan Taplin noted his recent piece in the The Guardian:
The largest monopoly in America, Google controls five of the top six billion-user, universal web platforms – search, video, mobile, maps and browser – and leads in 13 of the top 14 commercial web functions, according to Scott Cleland at Precursor Consulting.
As the controversial Trump-supporting PayPal billionaire Peter Thiel points out, companies like Google don’t like to advertise this fact. They “lie to protect themselves”, Thiel says. “They know that bragging about their great monopoly invites being audited, scrutinized and attacked. Since they very much want their monopoly profits to continue unmolested, they tend to do whatever they can to conceal their monopoly – usually by exaggerating the power of their (nonexistent) competition.”
All we can do is to continue to shine a light on Google’s bad practices and call out its mendacity at every opportunity….again and again and again.