Marvin Ammori

Yesterday, Google rolled out some big changes to its search engine, attempting to more fully integrate results from social networks. Well, not network[s], but network.  Google does not have the right to index most Facebook content, and Google search will integrate content from Google + . It has three main tweaks. First, search will display, in your results, photos and post from Google+ where relevant, but only those posts in your own account and those  shared with you. Other people will not see these results; they’re personalized. Second, Google + profiles will show up in search and in Google’s usual autocomplete function. Third, Google will suggest relevant profiles and pages on Google +; if you search for music, you might see Sufjan Stevens’ profile.

There’s been a range of reactions and I figured I would write up a few thoughts from my perspective as a user and as a lawyer.

As a user, I am a creature of habit and don’t like change. Whenever Facebook changes its look, I get uncomfortable. Unlike my little cousins on the site, I don’t freak out and threaten to leave the site (and then decide to stay), but I adjust slowly. In fact, Gmail has rolled out a “new look,” and I keep switching back to the “old look” I know and love. I could even opt out of Google’s new personalized search, something that Eli Pariser has praised. But search and social are converging and have been for years. Last February, Microsoft and Facebook announced an initiative to make search “more social” on Bing. Google has had personalized search for 7 years and social search for about 2 years. Experts let us know that our social presence affects our search placement and vice versa.

Plus, I could see how these tweaks would be very useful to me as a user. It is useful to me because I might see relevant stories photos shared with me on Google + but that, for some reason, I overlooked when posted. It would be far more useful if Facebook posts and Twitter posts showed up in my results, but Facebook doesn’t want its content integrated into Google search and Twitter’s deal with Google lapsed.  I find personalized search convenient–I read stories on my Facebook feed, my Twitter feed, daily email services, and my iPhone’s Flipboard app, and would love to be able to focus my searches on just those particular services.

But some of the criticism has focused on antitrust concerns. The New York Times quoted Professor Mark Lemley, of Stanford, saying that antitrust law just doesn’t apply here. Google has wanted to index and present results from a huge portion of the web that is invisible to Google: Facebook. So now Google is presenting its own social content, and antitrust, in his words, simply cannot restrain this practice. Lemley, like me, is a lawyer who has done some work for Google, and my law firm continues to do some work for Google, though not on this product.

I also don’t see the antitrust problem, but I haven’t seen an actual antitrust theory proposed. I assume the argument is one that the courts call “monopoly leveraging,” where a dominant company extends its monopoly from one market into another market. People argue Google is a monopoly in search because it handles over 60% of queries. But being a monopoly is not enough–that is the natural result of having better search results. To be illegal, under leveraging theory as I understand it, Google would also have to have a “dangerous probability” of monopolization of the new market–social. (Trinko, note 4)  No offense to Google, but I just don’t see how Google has a dangerous probability of knocking off Facebook in social.

In fact, if the critics are right, and again they haven’t been clear on their theory, I am not sure how Facebook’s tactics shouldn’t be condemned by the same critics. It would also be considered monopoly leveraging. Facebook is probably dominant in social, with 800 million users and has far higher engagement than Google +, which only has 40 million users. Nobody else comes close to those new networks, meaning Facebook could be a monopoly in social (depending on how you define the market). Facebook refuses to let Google index or display content from its site. Facebook has partnered with Bing to make its results more social. Is Facebook acting to leverage its dominance in social towards a dominance in search? I don’t really think so and antitrust law generally encourages aggressive competition that hurts competitors. These moves look like competition, hopefully making Google better at social (and search) and Facebook better at both as well.

Beyond antitrust, Twitter slammed the changes as bad for the Internet and for undermining the ability of users to find real-time news. Those looking for real-time news usually search Twitter and will probably continue to do that. (A CNET writer called the claim “a bit of a stretch.”) I discover real-time news far more often on Facebook than on Google News or a regular Google search. The change may encourage people to post breaking news on Google + so that the results show up in Google search, but it’s not clear that people posting breaking news will do so only on one service. News seems to travel far more quickly on Twitter and Facebook than through search. I can see why Twitter would oppose the move, but their response hasn’t suggested that Google has done anything illegal or improper, and I’m not yet convinced of its real-time argument. Professor Eric Goldman came to a similar conclusion–that the legal argument is missing.

These are really just quick thoughts. I hope my search results get better but don’t yet see an actual legal theory suggesting Google can’t incorporate social results into search.

The Seattle Times has a nice editorial about the retirement of FCC Commissioner Michael Copps, calling him “Mr. Public Interest.” The FCC’s mandate is to further the public interest, and nobody has done it better. The editorial focuses on Copps’s opposition to media consolidation, but Copps was instrumental in fighting for a range of good rules.

Perhaps nobody had as important an impact on network neutrality. As a geeky lawyer, I can list off a few arcane legal moves that changed the future of the Internet–his dissent in the 2003 Cable Modem Order that warned about the coming threat to net neutrality, his concurrence in the 2005 Wireline Order that helped create the FCC’s Internet Policy Statement which provided guidance in complaints against network providers, his vote in the AT&T Bellsouth merger in 2006 imposing a net neutrality condition on AT&T, and his aggressive negotiating in December 2010 for the strongest network neutrality rule the wavering FCC Chairman would agree to.

Michael Copps is not a household name. He toiled in a bureaucracy with arcane rules and legal orders, implementing multi-year strategies to pursue the public interest–one dissent, one speech, one public hearing, one vote, one day at a time. But the millions of Americans using an open Internet today have Mr. Copps, in part, to thank.

The tech and civil liberties communities have been fighting proposed copyright legislation. Critics have argued that the proposed legislation would break the Internet, create the Great Firewall of America, and lead to censorship while doing little to stop piracy itself. The bills are called the Stop Online Piracy Act (SOPA) in the House and the PROTECT IP Act (PIPA) in the Senate.

The point of this post is more narrow than explaining all that is wrong with the bills. It responds to one particular argument: defenders of SOPA and PIPA keep saying that the legislation would not affect domestic sites. They say that the bills only affect foreign infringing sites like The Pirate Bay and MegaUpload.

Unfortunately, they’re wrong. They’re wrong for at least three reasons.

First: The bills apply to the many American sites that have domestic and foreign domain names. This means Google.ca, Amazon.co.uk, and all the other foreign sites registered to American companies. (See the marked up version of PIPA, page 33, and the Manager’s Amendment to SOPA page 4. To understand the reference to registrar and registry, see definitions here.) The definition of a “website” in the bill includes even a “portion” of the site. So if even a few pages on Amazon.co.uk include copyright-infringing material, such as used bootleg CDs, then Amazon would have to respond to the bill.

Second: The bills’ anti-circumvention provisions don’t even pretend to limit the bills to foreign sites. They clearly apply to American sites. Any tool that helps anyone “circumvent” the bills’ remedies are illegal. Since the bills’ remedies include domain-name breaking and removal from search engines, any American sites that permit you to search for, or find, The Pirate Bay’s new domain name is potentially liable for circumvention. At least some people will tell you where to find The Pirate Bay, and they will use their Facebook status, their Twitter posts, their Tumblr, their blog on WordPress or Blogger, a Youtube video, or a webpage indexed by Google to do it. That means all of those American sites displaying the information might be subject to SOPA and PIPA as anti-circumvention tools. The language is pretty vague, but it appears all these companies must monitor their sites for anti-circumvention so they are not subject to court actions “enjoining” them from continuing to provide “such product or service.” What “product or  service” might be shut down?  The language is unclear. What could be shut down is the particular tweet or the entire Twitter service; one video or all of YouTube . (If it were just one tweet or video, the existing laws, such as the Digital Millennium Copyright Act would suffice, so the proposed law may be read more expansively.) (For evidence of this point, read the marked up PIPA, page 42, and the Manager’s Amendment to SOPA, pages 20-21.) Apparently, the SOPA/PIPA supporters are saying there’s “immunity”; they mean YouTube and Twitter wouldn’t pay damages-fees for circumvention. But YouTube and Twitter could be shut down. They would be “enjoined” from providing service, whatever that means. That’s an even bigger threat than damages.

Third: Beyond the first two, the enforcement provisions regarding even The Pirate Bay obviously impose a burden almost exclusively on American companies. Search companies have to remove links from their search engine, imposing compliance costs. This applies to Google, Bing, Yahoo, StumbleUpon, and also to smaller search engines like Blekko. The American domain-name providers must break the connection between some domains and IP addresses. This applies to large and small American DNS-providers alike. And the advertising and payment processing provisions apply to American companies. (For evidence, note even the bills’ defenders admit the bills will commandeer American intermediaries to target foreign sites. Indeed  it deliberately commandeers American intermediary companies not involved in any infringement.)

So, for these three reasons, the sites burden American sites and American speech.

In fact, I don’t think ThePirateBay.org and MegaUpload.com are even covered by the bills–despite all the invective against them. The bills define foreign sites based on their domain names, and .ORG and .COM are not foreign.

But it would not end the story if the legislation only targeted foreign sites: the First Amendment protects Americans’ ability to access non-infringing foreign speech no less than it protects our ability to access domestic speech. It protects our right to read books by Voltaire, Vaclav Havel, or James Joyce no less than our right to read Milton Friedman, Scott Fitzgerald, and Sabina Murray.

(Note: in addition to loving the Internet and being a long-time free speech lawyer and scholar, I also now represent some tech companies, some of which are on record against these bills. Also, if I misunderstood the import of the bills’ language in some way, I am happy to correct.)