Czech Search Engine Seznam Joins In the 'Let's Sue Google' Fun, Seeks $417 Million in Damages

from the good-luck-with-that dept

It seems that people have decided that now is a good time to attack Google in various ways. In October, the US Justice Department sued Google for allegedly violating antitrust laws. This month, ten US states sued Google, alleging anticompetitive behavior, followed by another 38 states, alleging that the company has created an illegal monopoly in online search and advertising. In November, 165 companies and industry bodies sent a letter to the EU complaining about Google and asking for tougher antitrust action. The EU has also released first drafts of its new Digital Services Act, and Digital Markets Act. One of the key elements of the new laws is tackling the power of leading online platforms like Google.

The EU has already taken steps towards that end. Back in 2018, the EU fined Google €4.34 billion for breaching antitrust rules. As part of its compliance with the EU's demands, Google introduced a process whereby other search engines can bid to appear on a "choice screen", which lets Android users pick the default search engine when they set up their smartphone. However, some rival search engines, like DuckDuckGo, were unhappy with the approach. At the end of October, DuckDuckGo, along with Ecosia, Lilo, Qwant and Seznam -- search engines from Germany, France, France and the Czech Republic, respectively -- sent an open letter to the European Commission on the subject:

We are companies operating search engines that compete against Google. As you know, we are deeply dissatisfied with the so-called remedy created by Google to address the adverse effects of its anticompetitive conduct in the Android case. We understand that Google regularly updates you regarding its pay-to-play auction, but it appears that you may not be receiving complete or accurate information.

We are writing to request a trilateral meeting with your office, ourselves, and Google, with the goal of establishing an effective preference menu. Our respective designees could work in advance to create a tight agenda for this meeting to ensure it is productive and collaborative.

Now one of those search engines -- Seznam -- has gone even further, reported here by Reuters:

Seznam.cz, the Czech Republic's leading home-grown web search platform, said on Thursday it had claimed 9.072 billion crowns ($417 million) in damages from Google, alleging that the U.S. giant restricted competition.

What makes this move noteworthy is that Seznam bases its claim on the fact that the EU has already determined that Google had breached EU rules in this area. The complaint concerns the period 2011 to 2018, before the EU forced Google to adopt the choice screen. Seznam's deputy chairman Pavel Zima, is quoted as saying: "we claim the compensation of damage that we have suffered while trying to distribute our applications and services via mobile devices with Android operation system". According to Reuters, Seznam has sent the claim to Google with a 30-day deadline, and says that it is prepared to take civil legal action if necessary. We'll see if it does, and how that works out.

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Filed Under: antitrust, competition, eu, search
Companies: google, seznam

Another Day, Another Antitrust Lawsuit For Google:

from the let-me-rest dept

So, just as I was finishing off the post on Wednesday's antitrust lawsuit against Google brought by 10 states, news broke that the other big state antitrust case against Google had been filed as well. This one involves 38 states, led by Colorado and Nebraska. I'm assuming that this is the main state antitrust lawsuit that states had been talking about, as compared to the first lawsuit with fewer states. Whereas the first state lawsuit focused on display ads, this one focuses on the market for search.

You can read the full filing, which I'd recommend. I think this one is the most interesting of the three antitrust lawsuits that have been filed against the company. Part of the argument more or less rehashes the DOJ's weak case that because Google pays Apple an astounding amount of money to be the default search on iPhones, that's proof of anti-competitive behavior. That's an argument that still just doesn't make any sense to me at all. If the accusation is that Google is abusing its position, you'd think it wouldn't be paying $8 to $12 billion dollars to Apple. If anything, that suggests that it's Apple who has the market power, rather than Google.

Where the case gets potentially more interesting is in the part where it argues that Google is abusing its search advertising tool, called SA360, in anticompetitive ways:

Advertising tools that optimize companies’ search advertising purchases have become increasingly important to advertisers. Google’s own search advertising tool, SA360, serves more advertisers than any other tool. Such tools can promote competition in search advertising by, for example, allowing easy comparison of competing offers.

Google has consistently assured advertisers that it would operate SA360 in a neutral manner. But Google harms competition by refusing interoperability to comparable advertising features offered by Microsoft’s Bing general search engine. Instead, Google continuously favors advertising on its own platform and steers advertiser spending towards itself by artificially denying advertisers the opportunity to evaluate the options that would serve those advertisers best. No technical or operational barrier prevents SA360 from providing advertisers with direct and interoperable access to relevant data and important functionality from multiple general search engines.

But the details here matter. If Google is being misleading about SA360, then that seems like it should be an FTC false advertising claim, rather than strictly an antitrust claim. But also, it's odd that the lawsuit seems to insist that refusing to interoperate with the company's main competitor in search, Bing, is somehow proof of anticompetitive behavior. I'd love it if there were a lot more interoperability, but I'm not sure this alone trips a real antitrust concern.

The lawsuit also goes down a weird well in claiming that suppressing "specialized search" sites is anti-competitive. There have been a few such sites that have complained about such things, but generally speaking those are spam sites. The reason that Google demoted them was that they made the Google search process worse, by sending you not to the results users were looking for, but to one of those specialty search engines that had good enough SEO to rank high in Google. That was very much a bad customer experience. But, the complaint argues that Google treats companies differently in way that is potentially problematic:

To artificially foreclose this opportunity and maintain its search-related monopolies, Google takes advantage of the fact that it has already banished rival general search engines to the fringes of the search-related markets, which has fostered an artificial dependence by specialized vertical providers on Google as a way to acquire customers. Doubling down on its exclusionary conduct, Google takes advantage of certain specialized vertical providers’ dependence on Google, treating them differently than participants in other commercial segments and further limiting their ability to acquire customers.

Google has already responded to the lawsuit by saying that it can defend all these decisions as making the product better for its users. And it's going to need to really prove that, because there do remain some decisions that are, at the very least, headscratching (like Google using only its own local listings for the carousel, rather than using the wider ecosystem of sites).

Of the three antitrust lawsuits filed against Google so far, this one strikes me as the most serious (with the caveat that some of the redacted parts of the other lawsuit filed this week sound pretty explosive, but the key details are all redacted, so it's tough to tell). The DOJ's lawsuit remains (by far) the weakest of the bunch.

I am assuming that these lawsuits will eventually be combined in some form. NY's Attorney General had original said that the intention of this latest lawsuit was to be combined with the DOJ's. It seems possible that all three lawsuits will be merged into one massive lawsuit. This latest one still has some problems, but the lawyering is much better than the DOJ's and the end result of this case will likely be the most interesting to watch concerning the future of search and search advertising.

Filed Under: antitrust, colorado, competition, nebraska, search, search advertising
Companies: google

Supporters Of Using Antitrust Against Big Tech Should Be Very Disappointed In How Weak The DOJ's Case Is

from the this-won't-go-far dept

As you've already heard, the DOJ filed the long-expected antitrust case against Google earlier this week. Karl has already discussed how it appears to be a politicized weapon wielded by Attorney General Bill Barr to create a bogus culture war around how Trump is "taking on" big tech. Cathy has looked at one weird aspect of the case -- how its own argument regarding trademark genericide actually cuts against the idea that Google is a monopoly.

However, what strikes me as most noteworthy about the filing is how insanely weak the argument is. As was already discussed, many lawyers in the DOJ had said they really needed more time to put together a complete case against Google... and it shows. I know that the folks who have been agitating for antitrust actions against Google for years are cheering this on, but that seems incredibly short sighted. As is currently filed (and it will likely change!), the case is so weak that Google would likely win in court, and it would then be more difficult (though not impossible) to craft another antitrust case later.

First, the case is fairly limited in what it argues. It focuses on Google's search distribution deals (e.g. getting Google to be the default search engine in things like Firefox or iOS, for which Google pays many, many millions of dollars). This seems like a weird choice for a variety of reasons.

For years, Google has entered into exclusionary agreements, including tying arrangements, and engaged in anticompetitive conduct to lock up distribution channels and block rivals. Google pays billions of dollars each year to distributors—including popular-device manufacturers such as Apple, LG, Motorola, and Samsung; major U.S. wireless carriers such as AT&T, T-Mobile, and Verizon; and browser developers such as Mozilla, Opera, and UCWeb— to secure default status for its general search engine and, in many cases, to specifically prohibit Google’s counterparties from dealing with Google’s competitors. Some of these agreements also require distributors to take a bundle of Google apps, including its search apps, and feature them on devices in prime positions where consumers are most likely to start their internet searches.

It seems worth noting here that Google pays a ton for those deals. Mozilla practically lives off of that contract. If Google is somehow forced to stop, that'll do a lot more to hurt Mozilla/Firefox than help it.

Also, when you're talking about abusive monopolies, it's normally how companies use their power to drive down how much they have to pay (because they're the monopoly). And yet, as the filing itself shows, these search deals have involved strong competition from Microsoft, meaning that Google ends up having to fork over huge chunks of cash.

Under the current agreement between Apple and Google, which has a multi-year term, Apple must make Google’s search engine the default for Safari, and use Google for Siri and Spotlight in response to general search queries. In exchange for this privileged access to Apple’s massive consumer base, Google pays Apple billions of dollars in advertising revenue each year, with public estimates ranging around $8–12 billion. The revenues Google shares with Apple make up approximately 15–20 percent of Apple’s worldwide net income.

Perhaps my understanding of how monopolistic markets work is different than the DOJ's, but I don't recall ever seeing it described as being a market where the "monopolist" pays billions of dollars just to be an (easily changed) default. The fact that Google's deal alone is 15 to 20% of Apple's revenue (and Apple makes a shit ton of money) alone seems damning to the underlying argument for the case. If Google were a monopoly, then by any normal economic analysis, it would be driving down how much it pays because Apple would have nowhere to go. The fact that Google has to pay so much suggests that there's actual competition for these deals.

There is also the question of what users want. Frankly, if my phone/browser didn't have Google as the default, I'd change to it. I've tried the alternatives (Bing, DuckDuckGo) many times over. And they just are rarely as effective as Google.

The other troubling aspect of the lawsuit is that it insists totally reasonable (and indeed, important to protect consumers) activity is somehow anti-competitive. Some of these seem to put Google into a no-win situation. They would get killed if they did things differently, and they're getting killed for doing things this way. Here's an example. A key part of the DOJ's argument is that Google's anti-forking agreements regarding Android are anti-competitive. And, as someone who uses a non-standard, Android-based mobile OS on my phone, there are definitely times that I wish there were more competition in forking and building out Android alternatives. But there are non-nefarious reasons why Google would do this:

Google’s anti-forking agreements, however, have inhibited operating system innovation through forking, ensuring that manufacturers and distributors are beholden to Google’s version of Android. Distributors know that any violation of an anti-forking agreement could mean excommunication from Google’s Android ecosystem, loss of access to Google’s must-have GPS and Google Play, and millions or even billions of dollars in lost revenue sharing. Thus, distributors avoid anything that Google might deem “fragmentation”—a term that Google “purposely leave[s] . . . very vague” and interprets broadly.

Pursuant to the preinstallation agreements discussed below, Google also has final say over whether a device is found to be compatible with the technical specifications Google requires manufacturers to meet before they can preinstall GMS. As a Google engineer noted, it must be “obvious to the [manufacturers] that we are using compatibility as a club to make them do things we want.” Google views its anti-fragmentation mandate, and its final approval of devices before they launch, as a “poison pill” to prevent deviation from the Google-controlled Android ecosystem.

One interpretation is that this is anti-competitive and giving Google control. But, remember, this is open source in the first place. The only reason forking is even any option at all is because Google made Android open source. No one can fork iOS. Or Windows. Because those are proprietary. Just the fact that it's open source seems like a weird thing to be the crux to hang an antitrust lawsuit over.

But, more to the point, another (non-nefarious) reason why Google might make those agreements is to hold various device companies to a standard that delivers users the experience they expect. Without those agreements, then you could get bad implementations of Android in which lots of things don't work correctly -- and end users would likely blame Google for that. Also, fragmentation has already been a problem in getting some apps to work smoothly across the wider Android ecosystem. So the efforts at standardization for those who want to offer the wider Google ecosystem are easily explained for the benefit of everyone, rather than as some attempt to block competition.

The lawsuit then immediately undermines its own point that everyone is afraid to fork Android... by showing how Amazon forked Android:

Google’s broad interpretation of the anti-forking agreements, and the reluctance it creates among Android distributors to support alternative versions of Android, presents barriers to entry. These were on display when Amazon developed its Fire OS operating system, a competing fork of Android. Rather than preinstall Google’s search engine, GPS, Google Play, or other Google apps on Fire devices, Amazon preinstalled its own proprietary apps and agreed to make Microsoft’s Bing the preset default general search engine. Amazon originally sold only Fire OS tablets, but in 2014 it launched a phone that ran on Fire OS. The phone was not a commercial success and Amazon quickly exited the phone business. Amazon continues to sell Fire tablets, which account for less than two percent of mobile device usage in the United States.

Right. As the DOJ says, this ended up being a flop for Amazon, but that also undermines the case. It shows that users like the Google services and apparently were not as interested in buying a device without them. So, the entire crux of the DOJ argument seems undermined in the filing itself. Basically, the argument is that Google prevents people from forking (except it didn't), and then shows when Amazon did fork, and says that failed in the marketplace. Which just looks like evidence that Google isn't blocking competitors, but rather consumers just prefer Google's offering.

Also, as Alex Stamos pointed out, a key problem with the assumptions in the DOJ's lawsuit is that the lack of startups entering the general search market is because of these practices by Google. But a much more reasonable assumption is that building a good general search engine is fucking hard.

And, a few have tried over the years, but they've had trouble, not because of Google's search deals, but because their products just weren't that good.

If your goal was to breakup Google or even cause real harm for the company... this isn't the lawsuit you're looking for. It's one of the weakest antitrust claims I've seen. I'm honestly perplexed by the people cheering this on because it's so weak that it's not going to work and will make any real antitrust harder down the road.

I will note that this might change. I imagine that there will be amended complaints down the road, and NY's attorney general put out a statement noting that while she and the AGs of a bunch of other states are investigating Google for antitrust, if they do file a case, they will seek to consolidate it with the DOJ's case. It's possible that whatever case the states bring could be much stronger.

I'm open to being convinced that this approach will work, but as it stands, this case looks incredibly weak, seems likely to fail, and even if it somehow succeeded wouldn't create any real structural change. Indeed, at best it would just limit how much Google has to pay out to lots of other companies, which helps support the wider ecosystem. I knew that this was a blatant political move by Barr, but I still expected a lot more meat to be found in the filing.

Filed Under: antitrust, doj, exclusive deals, market power, search
Companies: google

Google Warns Australians That The Government's Plan To Tax Google To Give Money To Newspapers Will Harm Search & YouTube

from the a-bad-deal dept

Earlier this year we noted that the Australian government was setting up a you're-too-successful tax on Google and Facebook which it planned to hand over to media organizations. We should perhaps call it the "Welfare for Rupert Murdoch" tax, because that's what it is. Murdoch, of course, owns a huge share of media operations in Australia and has been demanding handouts from Google for years (showing that his claimed belief in the free market was always hogwash).

In response, Google has now released an open letter to Australians pointing out that this plan to tax Google to funnel money to Murdoch will have massive unintended consequences. In particular, Google argues, under the law, Google would be required to give an unfair advantage to big media companies:

You’ve always relied on Google Search and YouTube to show you what’s most relevant and helpful to you. We could no longer guarantee that under this law. The law would force us to give an unfair advantage to one group of businesses - news media businesses - over everyone else who has a website, YouTube channel or small business. News media businesses alone would be given information that would help them artificially inflate their ranking over everyone else, even when someone else provides a better result. We’ve always treated all website owners fairly when it comes to information we share about ranking. The proposed changes are not fair and they mean that Google Search results and YouTube will be worse for you.

Even more to the point, in a cynical demand for "transparency" the law would actually create privacy problems for Australians by forcing Google to cough up info on its users to Australian media businesses:

You trust us with your data and our job is to keep it safe. Under this law, Google has to tell news media businesses “how they can gain access” to data about your use of our products. There’s no way of knowing if any data handed over would be protected, or how it might be used by news media businesses.

Australia's "competition watchdog" who was tasked with creating this legislation in the first place claimed that the letter was "misinformation."

“Google will not be required to charge Australians for the use of its free services such as Google Search and YouTube, unless it chooses to do so.”

The ACCC also reiterated that Google will “not be required to share any additional user data with Australian news business unless it chooses to do so”, as is outlined in the code.

“The draft code will allow Australian news businesses to negotiate for fair payment for their journalists’ work that is included on Google services,” the watchdog added.

Of course, if you look at the details of the draft code, it's actually the ACCC that is spreading misinformation here, and Google's concerns seem entirely substantiated. First, it's notable that the ACCC flat out says that the law is designed specifically just to impact Facebook and Google, though other companies could be added if bureaucrats in Austalia decided those companies got too big. This is astounding in its own way. In the US Congress isn't supposed to create laws that explicitly are designed to deal with a single company, but Australia has no apparent problem with that. Similarly, this kind of law would violate the 1st Amendment. That's because it's set up to benefit news organizations -- but only news organizations that the Australian government deems to "adhere to appropriate professional editorial standards." In other words, if the government doesn't like you, you might not qualify.

But the details in the draft also very much support Google's publicly stated concerns. It would require Google (and Facebook) to give these specially privileged news organizations all sorts of information (some of it quite crazy):

• give news media businesses at least 28 days’ notice of:
  • algorithm changes likely to materially affect referral traffic to news;
  • algorithm changes designed to affect ranking of news behind paywalls; and
  • substantial changes to display and presentation of news, and advertising directly associated with news, on digital platform services;
• give news media businesses clear information about the nature and availability of user data collected through users’ interactions with news on their services;
• publish proposals to appropriately recognise original news on their services;
• provide flexible user comment moderation tools for news media businesses; and
• allow news media businesses to prevent their news being included on any individual digital platform service

Second, giving news businesses "clear information about the nature and availability of user data" is an issue. While the draft proposal tries to suggest that this doesn't violate privacy because it's not giving the news orgs the actual underlying user data, just (effectively) the metadata of what is collected, that's not at all accurate either. As we've discussed in the past regarding government surveillance, the metadata about the data can be just as, if not more, valuable.

I know it's trendy to hate on Google, but this proposal in Australia is downright insane. It truly is welfare for Rupert Murdoch because he's jealous of the success of Google and Facebook, and that's just nuts.

Filed Under: algorithms, australia, data, google tax, journalism, news, news aggregation, news industry, rupert murdoch, search
Companies: google

Copyright As Censorship: WSJ Identifies Hundreds Of Bogus News Takedowns; People Blame Google Rather Than Copyright

from the place-the-blame-correctly-please dept

For years, the Copyright Office has been working on a report that is expected to be released sometime soon, about whether or not the DMCA's Section 512 "notice and takedown" regime needs to be changed. The big Hollywood and recording industry lobbyists have been gearing up to push for new rules, a la the European Copyright Directive, that put even more liability on intermediaries. Of course, what they really want is to force Google and Facebook to just hand them some cash because they've failed to adapt their business models while those two companies have thrived. Those legacy copyright-focused industries have already been pushing for things like mandatory licensing and "notice-and-staydown" rules, whereby if something that was taken down once gets re-uploaded, the hosting site becomes liable. Indeed, the industry already seems to have political support for some of these changes.

What's odd, however, is how little attention people seem to be paying in most of these discussions to whether or not we need to fix the DMCA in the other direction -- to fix for the fact that the notice-and-takedown provisions of the DMCA are regularly used for censorship, even of news. Late last week, the Wall Street Journal had a very thorough article (possibly paywalled) detailing how they found hundreds of news articles that were taken out of Google's search due to what appears to be bogus DMCA takedowns. After contacting Google about this, the company said that it had found approximately 52,000 news articles that had been deleted from its index via bogus copyright notices:

After the Journal shared its findings with Google, the company conducted a review and restored more than 52,000 links it determined it had improperly removed, she said. Google said its review identified more than 100 new abusive submitters, declining to discuss individual cases.

Think about that for a second. While we frequently hear Hollywood insisting that (1) copyright is never used for censorship, and (2) that Google is too permissive in allowing infringement, this simple case is showing just how wrong that is and how serious an impact that can have. When important news stories are being censored as an illicit form of a "right to be forgotten" that should concern all of us (not to mention raise some 1st Amendment questions about the DMCA):

When a Colorado man, Dak Steiert, faced state-court charges of running a fake law firm in 2018, he sent Google a series of copyright claims against blogs and a law-firm website that discussed his case, claiming they had copied the posts from Mr. Steiert’s own website. That wasn’t true, the Journal determined, but Google erased the pages from its search engine anyway.

Last year, Mr. Steiert, who didn’t respond to requests for comment, pleaded guilty in Colorado state court to one count of false advertising in his business. The Colorado Supreme Court closed his practice. The articles remained invisible in Google searches until the Journal flagged the cases to Google, which then reinstated the links.

Later in the article, they detail one trick used by some to delete articles: copying the articles to a blog, and then changing the date to make it look like theirs was first, and the real version came later and is infringing:

Financial-news site Benzinga fell victim to a common tactic to trick Google: backdating. Someone wanting Google to hide a webpage will find a little-trafficked blog and post a copy of the content from the legitimate webpage. After backdating the plagiarized post, the complainant will file an electronic notice with Google claiming the real article is a copyright violation.

Benzinga, after publishing an August 2015 article about financial difficulties at publicly traded Amira Nature Foods Ltd., began getting emails demanding it take the story down, said its managing editor, Jason Shubnell. The emails came from three different names, including a Richa Parikh who wrote that the Amira article was “spoiling our online reputation” and offered to pay Benzinga to remove it, according to a copy of an email the Journal reviewed.

Benzinga largely ignored the emails. In 2018, Google wiped the Benzinga story from its search results after a blog masquerading as CNN made a copyright claim. Mr. Shubnell said Benzinga wasn’t aware Google had hidden its story until the Journal contacted it, adding: “There was nothing wrong with the actual content of the article.”

Of course, over the past few years, we've certainly seen similar scammy attempts to abuse copyright law to remove stories. Revenge porn scammer and pretend politician Craig Brittain famously tried to get a ton of news articles about his past behavior removed from Google via bogus DMCA notices, and, in the last few years, we've seen a cottage industry pop up of "reputation management firms" that use dirty tricks, including fake DMCA notices and faked legal filings as a way to get stories delisted from Google.

While the WSJ article is very well researched and reported, and highlights this huge problem, my one complaint with it is that it barely acknowledges how the real problem here is the structure of the DMCA 512's notice and takedown structure -- which is heavily one-sided. Under the rules of 512, if you receive a takedown notice, you don't have to remove the content, but the legal pressure and liability is heavily weighted in that direction. If you remove the contested content, you are then (mostly) free from any copyright liability. If you refuse to remove the content, you are not. And while you might still prevail should a lawsuit be brought and you can make use of other defenses, the 512 safe harbor means that you'll get out of the case faster and easier if you just remove the content (and you're much less likely to be sued).

But, if a platform removes content in error? Well, there's no liability at all. And, while there is 512(f) of the DMCA that provides some theoretical legal liability for those who issue bogus takedowns, in practice the courts have largely rendered 512(f) moot. Add to that the already imbalanced nature of copyright's "statutory damages," which allow for up to $150,000 in damages for each infringed work (even if you can't show any actual damages), and the scale is heavily, heavily tilted towards censorship.

Just to review: a DMCA takedown strongly encourages content to be removed from the internet, even absent any actual infringement. There is almost no punishment for those who send bogus takedowns. There are strong legal liability reasons for recipients of notices to take content down upon receipt, and no corresponding liability for making the wrong call in taking down work that wasn't infringing. And the potential amounts of liability for leaving something up can be overwhelming. All that adds up to a law that is almost perfectly designed to encourage censorship.

Indeed, this rather unique aspect of the DMCA's notice-and-takedown provision is why academics have been pointing out that this law is frequently repurposed as a "general-purpose privacy and reputation" protecting law despite it not being designed for that (and the fact that if it were, it would clearly violate the 1st Amendment).

So, if I had one complaint about the WSJ piece, it is that it brushes over these structural flaws in the law, and that leaves many to believe that the faulty takedowns the WSJ discovered are somehow a Google problem, rather than a problem with copyright law today and the DMCA 512 specifically. Indeed, watching the discussion about this article flow through Twitter, it seemed that many wanted to blame Google for these mistaken story removals. That seems kind of silly. Indeed, of all the internet platforms out there, Google has historically been among the most aggressive in reviewing takedown notices and pushing back on bogus ones (and even sometimes suing abusers). Indeed, the few times that people have tried to remove Techdirt stories via bogus DMCA copyright claims, Google has always refused.

Yes, you can point to the 52,000 stories that Google has reversed itself on and reinstated and say the company should have done better -- but that gets back to the whole impossibility theorem when you have to do content moderation at a massive scale. Mistakes are going to be made, and that's especially true when you have a professionalization of the scamming via these sketchy reputation management firms, which explore many different ways to fool Google, utlizing the extremely unbalanced nature of the law itself.

Unfortunately, though, when a story is positioned this way, it would not surprise me to see even some Google haters who want to make copyright law worse, use this very article as an example of why 512 should be made worse, not better. Anything to blame Google, I guess, even when the actual problem is with the law itself.

Filed Under: censorship, copyright, dmca 512, dmca takedowns, news, reputation management, search
Companies: google

Another Federal Court Says Chalking Tires Is A Violation Of The Fourth Amendment

from the bring-on-the-touchless-surveillance dept

In one of the more surprising Fourth Amendment decisions ever handed down, the Sixth Circuit Court of Appeals ruled "chalking" tires for parking enforcement was a search and, as such, violated the Constitution. The ruling, handed down last spring, sided with the plaintiff. It found that the use of chalk to mark tires for parking enforcement was an investigative act. The intrusion onto citizens' private property -- their cars -- for investigative reasons (rather than the community caretaking function the government claimed) was impermissible without a warrant, even if the cars were parked on public streets.

The City does not demonstrate, in law or logic, that the need to deter drivers from exceeding the time permitted for parking—before they have even done so—is sufficient to justify a warrantless search under the community caretaker rationale. This is not to say that this exception can never apply to the warrantless search of a lawfully parked vehicle. Nor does our holding suggest that no other exceptions to the warrant requirement might apply in this case. However, on these facts and on the arguments the City proffers, the City fails to meet its burden in establishing an exception to the warrant requirement.

As is stated above, the Appeals Court didn't say the city wouldn't ultimately prevail, but that it couldn't prevail on the arguments made in this case. A trespass is a trespass, even if it's only with a piece of chalk. Parking enforcement officers use chalk to determine whether criminal infractions have occurred. That's an investigation, not caretaking. And the case returned to the lower court for a second pass with the Appeals Court's jurisprudence in mind.

This case, via Orin Kerr, is similar. But it originates in the Ninth Circuit. Nevertheless, the judge in this case applies the Sixth Circuit's ruling to the facts to find that chalking tires is a search under the Fourth Amendment. Taking into account this ruling -- along with the Supreme Court's ruling on the warrantless attachment of GPS trackers to people's cars -- the California federal court says this trespass violates Constitutional rights, no matter how minimal the trespass. From the decision [PDF]:

Considering Jones, a technical trespass occurs when there is unauthorized physical intrusion. Jones, 565 U.S. at 420 (Sotomayor, J., concurring). Although Jones does not outline the boundaries of how intrusive this unauthorized physical intrusion must be to be considered a trespass, the Supreme Court found that the physical contact of a GPS beeper to the undercarriage of a car was sufficient, even though the actual contact of the beeper did not cause any damage to the defendant’s effect.

Here, considering whether the Defendants’ conduct was trespassory, the Court finds Plaintiffs have pled sufficient facts to establish their claim. Defendants physically placed chalk marks on the tires of vehicles. Although this contact does not cause outward damage to Plaintiffs’ property, it is a technical trespass nonetheless.

Moreover, constitutionally protected areas include persons’ papers, houses, and effects. U.S. Const. amend. IV. This case involves constitutionally protected personal property – personal vehicles – belonging to the Plaintiffs. Once a technical trespass has been established, it must also be shown that the trespass is conjoined with an attempt to obtain information.

This is a fairly evident point established both in Jones and here. In Jones, the police used the installed beeper to track the defendant for investigatory purposes. Here, the police chalked Plaintiffs’ tires to obtain information as to whether Plaintiffs violated the parking limitations in order to issue a citation.

Chalking could still be permitted if the search is reasonable or supported by an exception to the Fourth Amendment. Community caretaking doesn't work, even if the court says chalking isn't necessarily always investigatory.

Although tire chalking is arguably divorced from investigation, it is unclear whether there is a public safety risk to justify the Defendants’ actions. Defendants have merely offered that it applies to address the “immediate need for safety in the City’s rights of way.” Accordingly, the Court finds Defendants are not entitled to dismissal under the community caretaking doctrine at this juncture.  

Neither does the "special needs" exception. While "maintaining order in the public ways" is in the public interest, the method of doing this involves an unjustified trespass that exceeds what's needed to accomplish this goal. The privacy expectation inherent in people's cars outweighs the government's needs under this exception.

There is also no "implied license" exercised in the act of parking on a public street… at least not when it comes to allowing literally unwarranted trespasses by the government.

It is possible that law enforcement has an implied license to touch a vehicle in the same manner, and for the same purpose, as a private citizen distributing advertisements, but does not have an implied license to make contact for the purpose of investigating whether a violation of law has occurred. Defendants’ position seemingly ignores the purpose behind the two types of action: one is innocuous while the other is investigatory. On its face, the practice of chalking tires seems more investigatory than innocuous…

Like the Sixth Circuit, the California court doesn't say there's no way the government will be able to talk it into continuing to mark tires without a warrant. But it's not willing to dismiss the lawsuit at this point. For now, chalking tires in this federal district is an invitation to be sued.

Filed Under: 4th amendment, 9th circuit, chalking tires, parking enforcement, search, trespass

Someone Convinced Google To Delist Our Entire Right To Be Forgotten Tag In The EU For Searches On Their Name

from the i-wonder-who-that-might-be... dept

We received notification this week that Google has delisted our entire right to be forgotten tag page, based on (of course) a right to be forgotten request under the GDPR in the EU. To be clear, this only applies when someone searches the name in question -- which was not shared with us. I am... perplexed about this. I understand that some people may not want us talking about their ongoing efforts to rewrite history and hide their past. However, you would think that if these articles don't actually talk about their historical scams that are very much a part of the public record, and instead focus on their very current and ongoing abuse of the "right to be forgotten" process, they should be allowed to remain up.

The very fact that the tag being delisted when searching for this unnamed individual is the "right to be forgotten" tag shows that whoever this person is, they recognize that they are not trying to cover up the record of, say, an FTC case against them from... oh, let's just say 2003... but rather are now trying to cover up their current effort to abuse the right to be forgotten process.

Anyway, in theory (purely in theory, of course) if someone in the EU searched for the name of anyone, it might be helpful to know if the Director of the FTC's Bureau of Consumer Protection once called him a "spam scammer" who "conned consumers in two ways." But, apparently, in the EU, that sort of information is no longer useful. And you also can't find out that he's been using the right to be forgotten process to further cover his tracks. That seems unfortunate, and entirely against the supposed principle behind the "right to be forgotten." No one is trying to violate anyone's "privacy" here. We're talking about public court records, and an FTC complaint and later settlement on a fairly serious crime that took place not all that long ago. That ain't private information. And, even more to the point, the much more recent efforts by that individual to then hide all the details of this public record.

And of course, plenty of our right to be forgotten stories don't mention this particular individual at all -- so it seems pretty silly to then have them all blocked, but this is the future the EU apparently wanted. Just the fact that the tag itself was around "right to be forgotten" probably should have tipped off the Google reviewer that perhaps this was not a legit request, but hey, the EU's gotta EU and I won't goolnick around and complain about whatever decisions the company makes.

Filed Under: censorship, eu, free speech, gdpr, right to be forgotten, search

RIAA, Stream-Ripping Sites Engaged In Dumb Game Of Whac-A-Mole With Search Engines

from the get-ripped dept

As we've detailed previously, the RIAA has for the past year or so specifically moved on to targeting stream-ripping sites as a primary focus. It's not entirely without logic, as more and more piracy by percentage has moved away from direct file downloads and torrents, and onto ripping streams. The focus has largely been on YouTube, where some sites have declined to play games and accepted defeat. But the RIAA is also targeting these sites to have them delisted from search engines. There, the whac-a-mole game is most definitely being played.

The upside for the RIAA is that there’s no standard counter-notice option for these requests. So, even when site owners don’t agree with the request, they have no option to protest it. Besides going to court, perhaps.

That doesn’t mean that these operators are sitting idly by while their search traffic is taken away. On the contrary, behind these scenes there’s a full-blown takedown war going on. Or to phrase it less aggressive: a game of takedown whack-a-mole.

Pretty much all of the large YouTube rippers are continuously updating to new URLs, which are not yet taken down by the RIAA. In most cases, new numbers are simply added to the URL. This ensures that their websites continue to show up in Google’s search results.

If this all sounds exceedingly pointless to you, welcome to the club. By trying a route that doesn't allow actual protest and oversight, the RIAA has instead chosen a method that is gloriously ineffective. Get a search engine to delist a URL, and the stream-ripping site simply alters the URL and gets it listed once more. Then the RIAA requests the delist on that new URL, at which point we rinse and repeat. The end result?

The result is a game of whack-a-mole that can potentially continue for years. Unless one side gives up of course.

None of the YouTube rippers we contacted responded to our request for comment. From what we can see, their traffic doesn’t appear to be impacted much. Some have seen a drop in traffic recently, but others witnessed an uptick at the same time. In any case, all the major sites are still findable in Google’s search results.

Whatever you may think of the RIAA's claim that stream-ripping sites ought to be taken down, a claim that I very much disagree with, we should all certainly be able to agree that this current strategy is completely pointless. It's time to come up with a new plan, RIAA folks, because when you play whac-a-mole, the idea is that you never actually win.

Filed Under: copyright, delisting, search, stream ripping, whac-a-mole
Companies: google, riaa