Google And the Law, The Book

Did Google go too far ... or is Google victim of legal lag?

Yours truly had the honour to write a chapter for a very promising book called Google and the Law edited by Dr. Aurelio Lopez-Tarruella, of which I have so far only read my own chapter. But the colleagues I know are all very knowledgeable in their respective fields and we all share a passion for the law. Hope I will see them soon and meet the colleagues I have not met before.

My chapter 'Paradoxes, Google and China' is about the blessings of intellectual property and the evil of censorship, two subjects about which both Google and China had some issues. I forgot to place a disclaimer at the end of my chapter, which should have said: I used Google when researching the chapter and enjoyed the hospitality in Shenzhen at the same time.

The text of the publisher is:
Google has proved to be one of the most successful business models in today’s knowledge economy. Its services and applications have become part of our day-to-day life. However, Google has repeatedly been accused of acting outside the law in the development of services such as Adwords, Google books or YouTube. One of the main purposes of this book is to assess whether those accusations are well-founded. But more important than that, this book provides a deeper reflection: are current legal systems adapted to business models such as that of Google or are they conceived for an industrial economy? Do the various lawsuits involving Google show an evolution of the existing legal framework that might favour the flourishing of other knowledge-economy businesses? Or do they simply reflect that Google has gone too far? What lessons can other knowledge-based businesses learn from all the disputes in which Google has been or is involved?

This book is valuable reading for legal practitioners and academics in the field of information technologies and intellectual property law, economists interested in knowledge-economy business models and sociologists interested in internet and social networks.

Table of contents

1 Introduction: Google Pushing the Boundaries of Law . . . . . . . . . . 1
Aurelio Lopez-Tarruella
2 The Power of Google: First Mover Advantage or Abuse
of a Dominant Position? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Sophie van Loon
3 Google AdWords: Trade Mark Law and Liability
of Internet Service Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Jeremy Phillips
4 Google and Personal Data Protection . . . . . . . . . . . . . . . . . . . . . . 75
Bart van der Sloot and Frederik Zuiderveen Borgesius
5 Google News and Copyright . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Raquel Xalabarder
6 Copyright Issues Regarding Google Images and Google Cache . . . 169
Miquel Peguera
7 The ‘‘Viacom v YouTube’’ Litigation and Section 512(c) DMCA:
When the Safe Harbour Becomes a Permanent Mooring . . . . . . . . 203
Annsley Merelle Ward
8 Looking Beyond the Google Books Settlement. . . . . . . . . . . . . . . . 239
Gary Rinkerman
9 Google Chrome and Android: Legal Aspects
of Open Source Software . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
Malcolm Bain
10 Google, APIs and the Law. Use, Reuse and Lock-In . . . . . . . . . . 287
Andrew Katz
11 Paradoxes, Google and China: How Censorship can Harm
and Intellectual Property can Harness Innovation . . . . . . . . . . . . 303
Danny Friedmann
12 The International Dimension of Google Activities: Private
International Law and the Need of Legal Certainty. . . . . . . . . . . 329
Aurelio Lopez-Tarruella
13 In Search of Alterity: On Google, Neutrality and Otherness . . . . 355
Marcelo Thompson

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Digital Economy Act: Google Points Finger To China, But Patent Application Points to Google

Photo: Danny Friedmann
Google shedding crocodile tears about freedom of speech

Will the real freedom of expression lover please stand up? 

Just as "Digital Opportunity", Professor Ian Hargreaves' independent review of UK's intellectual property law came out, Eric Schmidt, executive chairman of Google is comparing UK's plans on copyright enforcement with censorship in China.   

He was quoted by Josh Halliday saying: “So, ‘let’s whack off the DNS’. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say ‘I don’t like free speech so I’ll whack off all those DNSs’ – that country would be China." Read Mr Halliday's article for PaidContent here.

Well Google does have first-hand experience with censorship, because in most countries, including China, they filter whatever the government wants them to filter. Ironically, Google went even beyond what is required by governments and filed an application in the U.S. to patent censoring methodology, that censors depending on the location of the user. Namely: 'Variable user interface based on document access privileges', U.S. Patent application number: 10/953,496, filed: September 30, 2004, assignee: Google Inc. (Mountain View, CA), you can find it here.

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Best of Google's White Paper: Censorship is Hurting China's Economy

Intellectual property and market access are interdependent subjects. If there is a barrier to the free flow of information (the market access is challenged, regulated or censored when it refers to copyrighted goods), no intellectual property can be exploited and this will feed a demand for pirated works and counterfeit products.

Google has problems accessing the market in China, because it cannot offer its users unrestricted access via its search engine and other applications. In the hope of solving this problem it published a white paper of 25 pages, see here: Enabling Trade in the Era of Information Technologies: Breaking Down Barriers to the Free Flow of Information, in which it appeals to basically everyone:

• "Focus on and publicly highlight as unfair trade barriers those practices by governments that restrict or disrupt the flow of online information services.
• Take appropriate action where government restrictions on the free flow of online information violate international trade rules.
• Establish new international trade rules under bilateral, regional, and multilateral agreements that provide further assurances in favor of the free flow of information on the Internet."

If this does not sound very innovative to you, it is because it is not.

The most persuasive argument: internet censorship is bad for the economy of the censoring country, because it is a restraint on global trade. The other arguments (trying to stop violation of international trade treaties such as WTO's TRIPs, unfair competition and favouring indigenous industry) might all be laudable and valid, but not as compelling to China right now.

Therefore it would be interesting to elaborate how censorship is hurting China's economy and stifling innovation. More about this subject later.

UPDATE November 18, 2010:

Ronald Yu pointed me to an interesting The Register article by Cade Metz 'Baidu boss: Google don't know China' that the problems Google is facing are not only related to market access. Thanks Ron.

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Google Government Requests Tool Copyrighted Content Included and What About China?

Google has launched a Google Maps tool, called Google Government Requests to show statistics of all government requests it is getting to supply data or to remove content and the percentage it is fully or partially complying with these requests.

• Because, according to Google, "Chinese officials consider censorship demands as state secrets", Google "is not disclosing that information at this time."
• "[F]or YouTube, we have not included government requests for removal of copyrighted content. The vast majority of requests for removal of copyrighted material on YouTube are received from private parties; some may come from state or foreign governments, but that number is very low. Regardless, such requests are not reflected in these statistics."

Great that Google is disclosing its dealing with governments, but the following is unclear to me:

• This emphasis on the exclusion of government requests for removal of copyrighted content for YouTube, suggests that the requests for the removal of copyrighted content at other Google sites is included in the statistics. Is it? However, when you click on China, the only information you are getting is about censorship.
• And this suggests that the Chinese government never requested a removal of data because of copyright infringement. Did it?

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