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Friday, 2 March 2012

Blowing the lid on more secret meetings. Search engines asked to police results, promote 'good' music sites, demote bad

This is exclusive and pretty shocking.

We know laws such as the UK's Digital Economy Act and America's SOPA/PIPA met incredible resistance from the tech industry and internet users, and readers of this blog and Open Rights Group supporters are already aware the UK government has switched tack from legislating to encouraging agreements directly between service providers and copyright owners.

What we didn't know until now is the extent that the UK government and in particular Ed Vaizey, Minister for Culture, Communications and the Creative Industries, is pressurising search engines to police search results in a way that goes well beyond notice and take-down.

I'm told a consortium of search engines at a meeting on Tuesday were accused of a "retrograde step" after failing to make progress on a proposal by music rights holders for a system to promote "good" music resellers and demote "bad" in the search rankings.

Copyright protection is dominating a digital policy debate that should include so many other important issues across the whole digital economy and general society.

I'm now calling on the UK Government to seriously consider creating a separate, dedicated department with sole responsibility for the internet, removing the clear conflict of interests for a Minister responsible for both the creative industries and the internet.

Such an "office for the internet" would probably best sit in the department for Business, Innovation and Skills (BIS) and focus on the economic value to the UK of the internet industry as a whole.

Government should be spending at least as much time time discussing opportunities for the creative industries to embrace new communications technologies rather than restrict them, and host meetings with a wide group of interested parties, not the same old faces singing the same old tune.

Blacklists and white lists

Instead what is being discussed according to multiple sources close to proceedings is a system of blacklists and white-lists to be provided by the music and film studios to search engine operators.

The blacklist is of websites accused of infringement. These sites will never appear in search results. That's the whole site, not just the pages from the site with infringing content.  And this is not a court process, it's a notification system allowing studios to tell search engines directly who the bad guys are.

A white-list of "approved" online music and film services will artificially promote selected legitimate online stores for music/film oriented searches.  How one gets on such as list and whether the gatekeeper could profit solely for being the one and only gatekeeper is anyone's guess.

Representatives from three major search engines pushed-back on similar proposals at a meeting last year, but on Tuesday faced questions from chair Ed Vaizey, who I'm told was "clearly surprised if not a little upset" that the three didn't return with a viable counter-proposal.

I'm told that whilst search engine providers are both keen to strictly abide by all national laws and also willing to work with content owners to provide easy-to-use notice and take-down systems (under the EU E-Commerce Directive and US DMCA), they are "drawing the line" at doctoring search results to suit one relatively small group of economic interests.

Competition, competition, competition

At least that's the line I'm getting from some senior sources at these companies. 

Other sources tell me search engines might be more keen to operate a blacklist than they would a white-list. 

A white-list system raises serious competition questions over how "approved" music services would be chosen and could leave search engines open to legal challenges.

Forgetting piracy for a minute, I wouldn't be surprised if the legal teams at these search engines are highly worried about a signed agreement between a group of interested parties and the world's three leading search engines which binds them to to act in a manner which artificially promotes a select group of commercial services over others. 

A large competition question already hangs over the sale of digital creative content.  The EU is investigating the market for e-books and I'm told by a contact at the EC that this is part of a wider investigation into the consumer market for digital goods, where licensing deals can be so complex to negotiate that licensing provides an effective veto over who can sell digital content.

Yet open market competition would almost certainly push all legitimate content sellers to the top of Google, Bing, Yahoo and any other search engine, removing the need for artificial promotion.

Why? Because a mass of independent resellers will then be racing each other to the top of search engine rankings.

Given, say, an open wholesale market where a license to resell a track of music costs 29p; some sellers will invest heavily in SEO and marketing in order to sell music at an inflated price, whilst others may choose to discount, get stacks of music fansites to link to their store and grow their business that way.  The net result: search engines rammed full of legitimate music.

My sincere belief is that publishers are privately hostile to any proposal which involves open market competition. They don't want Tesco's selling mp3s at 10p a track and so they frequently use the piracy card to seek control measures that would reinforce their existing business practices, retaining full control over who is authorised to sell what.

Free speech, secret meetings

The civil rights angle has been much explored so I won't dwell long, only to mention how bogus notice-and-takedown has been abused by the music industry to remove a site from Google critical of the music industry.

The impact is exponentially greater if a single complaint could result in a whole site being blacklisted, and I fully expect this blog to disappear entirely from Google should rights holders get this power.

So there's clearly a public interest in getting such processes right.

Whilst an agreement between private parties has no automatic right to public scrutiny, when a government minister not only chairs such meetings but does so to fulfil his government's policy objectives, it becomes a public matter.

Multiple industry sources provide first-hand accounts of how Ed Vaizey tells executives from large national and multi-national internet companies they must "act [on copyright enforcement] or face legislation [in the upcoming Comms bill]".

And, whilst one similar discussion last year was opened-up to some scrutiny, similar meetings then continued in secret with no official word from any of the key participants.

Search engines form just one "pillar" of what DCMS sources tell me are the "four pillars of the digital economy" (although I note they're talking about the creative sector as if it represents the entire digital economy).

The four pillars are web blocking of illegal content, strangle funding for illegal content, educate consumers (with the stick of the law available if needed) and promote legal services.

On funding a meeting was held last Wednesday at the Department for Media, Culture and Sport between rights holders, and advertisers and payment service providers.

I'm told in that meeting a broad consensus was reached to create a blacklist of websites where no advertiser would be allowed to advertise or face expulsion from industry bodies such as the Internet Advertising Bureau (IAB).

Whilst I broadly support such schemes, I am seriously concerned that the blacklist will be developed in secret with no oversight or due process for legitimate sites accidentally caught in the net.

ISPs have pretty much said they will work within the website blocking provisions of s97A of the Copyright, Designs and Patents Act.

It seems the DCMS is looking to search engines and not rights holders to provide the fourth pillar!

A DCMS source said, after repeated requests for comment, "we do not comment on speculation."

The Open Rights Group also calls for open policy making and an end to these secret meetings.



  1. Not easy to implement, but if we all stopped buying any music/movies, they would soon get the message, from the artists they represent, and back off.

    1. They'll say it's piracy's fault, give us more laws, collect a new tax for us.

  2. Some groups representing artists are already starting to raise concerns that the lobbyists - normally the groups representing *publishers*, not *artists* - are going too far. I'm hearing there's a good possibility ofa major split within the copyright lobbyists over their tactics.

  3. Megabox would have fixed this. It would have knocked the bottom out of their whole power structure. Apart from a handful of high profile exceptions, artists are getting just as screwed as we are by the corporate behemoths.

  4. Is anybody else taking part in the Black March boycotts? It's a legal way of demonstrating our displeasure. I'm sick of having Big Content dictate the policies of a sovereign government to protect a failing business model.

    I should point out that independent local artists would be exempt from this because it's about Big Content, not content makers in general.


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