Marvin Ammori

Next Wednesday, May 16, George Mason University is hosting an academic conference on competition, search, and social media. Most academic conferences are not newsworthy. (They’re often boring.) But the Wall Street Journal has already written about two papers sponsored by Google, one of which will be presented at this conference. The Journal describes the two papers as evidence that one of the world’s largest companies (Google) is “returning fire” against a federal agency (the Federal Trade Commission).

This is already the most exciting academic conference ever.

As someone who’ll be speaking at the conference, I’d hate to burst the bubble… but there have been dozens of geeky conferences and panels by academic institutions and think tanks about the question of antitrust and Google. The conferences are trying to shed light on some hard and interesting questions ranging from the role of antitrust in dynamic industries to appropriate remedies to search results and free speech. (And if you’re going to have a conference, why discuss antitrust in corrugated steel or cardboard box inputs?)

Some of the papers presented at these conferences are funded by Google, some by its competitors, and some are written by academics funded by neither. Authors include economists, law professors, technologists, and lawyers.

I am speaking on the last panel, about remedies. My own paper for the conference will be published in the Journal of Internet Law on Monday. My paper focuses on the remedies proposed by Google’s competitors in the antitrust inquiry. It provides a detailed legal analysis of the dozen or so proposed remedies, which range from the “completely ridiculous” to the “apparently plausible but do not hold up under close scrutiny.” My paper, like Volokh’s, was supported by Google, which is a client of my law firm. (And to clarify–I don’t speak for Google, but I do hope that some of their lawyers read my paper, learn something from it, and perhaps even adopt the arguments presented in the paper ….)

UCLA law professor Eugene Volokh will be on the remedies panel as well. Volokh is a famous First Amendment scholar (though he has made contributions in other fields) and he runs a popular legal blog called the Volokh Conspiracy. He has a libertarian bent. If he ended up on the Supreme Court, a Republican president would have appointed him (the same would not be said of me).

Professor Volokh’s paper argues that Google search results are protected under the First Amendment as “opinions” no less than New York Times editorials. His paper has received some attention in a variety of outlets, including Wired and the Hill.

I’m also (and primarily) a First Amendment expert–I taught and have published on the subject for years. I have very strong views about the First Amendment.

So I’m going to disagree with Eugene Volokh on a few points.

I don’t like the argument that search results are protected opinions and that Google’s speech rights matter much. I know that two district courts have in fact held that search results are opinions. More importantly, I know that five of the Supreme Court Justices think very highly of corporate speech rights, as evidenced by commercial speech cases and by the Citizens United case that overruled two recent precedents and decades of law just to ensure corporations can spend unlimited sums buying elections. So Volokh’s analysis probably reflects what courts would in fact do–and I rely on the courts’ analysis in my paper regarding the law.

But I have to do what law professors (and former law professors like me) do so often–agree with the result but disagree with the reasoning, while taking shots at the five conservative Justices on the Supreme Court.

I’d argue that, whether search results are opinions or not, government should not have discretion in deciding search results. We’d simply invite too much danger and set a bad example for the rest of the world. Regulating search engines is something the Chinese government has pioneered and perfected. I understand that the regulation of search results here is designed to ensure “neutrality” for competitors, but neutrality is a confused, discretionary, incoherent concept, inviting gaming and political manipulations.

Do a Google search for Santorum. Or Miserable Failure. Or Romney. (Then Santorum again…) I am not sure we need to say that those search results are Google’s opinions in order to make the case that, under the First Amendment, we don’t want politicians mucking around with search results. I don’t think we need to argue that Google, as a corporation, deserves considerable corporate speech protection for these opinions to conclude that we Internet users, who rely so heavily on search to navigate the web for speech purposes, deserve protection from government agencies manipulating search results.

In a lot of my writings, I have tried to draw distinctions between structural regulation and content regulation. (I wasn’t the first–see Ed Baker, Yochai Benkler, Mike Burstein, Jack Balkin, etc.) Structural regulation–setting up the economic rules of the media and communications environment–is less problematic and makes up the bulk of the Communications Act, which is directed to phone lines, cable lines, and wireless licenses. Content-directed regulation is far more troublesome.

This looks like regulation of content, whether or not the Google corporate speaker has important opinions. Let’s try a fanciful example. What if Google offered a yellow phone book. In Google’s “opinion,” Google decides to list everyone in alphabetical order. This is hardly an opinion–how else would you organize a phone book? But let’s say the Obama administration issues an order: “We want you to list all Obama campaign donors on the front pages of the phone book, not in alphabetical order, and draw happy faces next to their names. Sprinkle the names of Romney donors at random throughout the book so people will have trouble finding their numbers…” Clearly that would be unconstitutional–even though it’s hard to think of alphabetical arrangement as an “opinion.”

To try another fanciful example, let’s say Google places one result at random at the top of every search result. We’ll say it’s part of a plan to counteract the supposed “Filter Bubble” and get us to see sites we’d never think to search for. Google is not stating much of an opinion here in displaying one site over another–we are stipulating they are all placed at random. Even with these random, non-opinion displays, if the government started getting involved in what could be displayed, we would still be concerned.

The second half of Volokh’s paper makes this point and cites the exact case I would have cited (the 1945 Associated Press case), where newspapers were subject to antitrust law but partly because the remedy chosen did not interfere with content. Interfering with content for search results strikes me as problematic because of the impact on users, not the impact on Google’s corporate speech rights.

Point is: Volokh might be right; five Supreme Court justices are more likely to agree with him regarding the importance of Google’s corporate speech rights than to agree with me, as I often read Supreme Court dissents on corporate speech rights wishing they were majority opinions. But I do think that the remedy proposed to regulate search results would be constitutionally problematic content-regulation–with the same standard-less-discretion that the liberal Justices most condemn.

Next Wednesday, George Mason University is holding a conference on competition, search, and social media. I will be on a panel regarding antitrust remedies, and this post is about a particularly misguided remedy.

Over the past few years, Google’s ubiquity and has success captured the attention of both competitors and regulators. Google’s competitors have raised concerns over the company’s practices in their bid to encourage an investigation and regulatory action against the search engine, with some particularly related to copyright matters. Their complaint: that Google search engages in “theft” of the content of other sites, puts that content in search results, and therefore use the stolen content to generate ad revenue. (For example, see page 29 of this report issued by Google’s competitors including Microsoft and Yelp). Their proposed remedy: to forbid Google from displaying in search results “snippets” from other sites without permission. They claim that Google is forcing them to choose between (a) allowing the company to steal their content and be included in Google search results without negotiating over how the snippets will be displayed or commit “webicide” by removing yourself from Google search results.

This post explains why the copyright theories of Google’s competitors’ are so mistaken. Google’s competitors are wrong on both the complaint and the remedy, both of which betray a deep misunderstanding of copyright law and of how the Internet has developed. Essentially, the competitors suggest that Google cannot exercise the right to fair use without violating antitrust laws—even though fair use is a limitation on copyright grounded in the First Amendment itself, announced by courts, and codified by congressional statute.

Snippets and Fair Use in Copyright Law

We can begin our analysis with this fact: displaying a “snippet” is generally a “fair use”—whether done by Google, Bing, Yahoo, or Facebook and Twitter users. What’s a “snippet” and what’s “fair use”?

A snippet is a small piece of content, usually text, from a website. It is essentially a short quote. In the pre-Internet world, perhaps a short quote for a book review: “Hemingway’s asserts that ‘War is not won with victory.’” Search engines display snippets in their results to help users determine whether a linked page is what a user is seeking. A search for “Apple” will turn this displayed snippet in Google: “iPad is a magical window where nothing comes between you …” The use of snippets is fundamental to how search engines work. Without snippets, navigating the web would be more laborious and time consuming.

Fair use is a legal concept. It is the right to reproduce/copy or display portions of a copyrighted work when certain factors are met. The Supreme Court has declared fair use to be a “traditional contour” of copyright protection, and a “built in First Amendment accommodation.”

There are two main policy reasons for fair use. First, freedom of speech. Copyright laws limit the speech of people who don’t own a copyright. The government can fine or send us to jail for saying, singing, or writing certain things (“speech”) because of the words chosen. For decades, legal scholars and judges have discussed how copyright fosters certain speech and suppresses other speech. Because of the burden on speech, copyright law accommodates free speech in several ways: an ideas/expression dichotomy (ideas cannot be copyrighted) and an originality requirement (facts cannot be copyrighted). But perhaps the most celebrated accommodation for free speech is fair use. Fair use lets people transform, criticize, research, and reference content without needing permission from anyone—government or copyright holder.

Second, economics. There are high transaction costs for clearing the use of every snippet or quote or use of content under copyright—particularly when copyright automatically attaches to almost everything we create. These transaction costs are probably astronomical for search engines—they would need copyright permission from every site on the Internet to display a snippet of their content in search results. Even if almost every site would happily oblige, the transaction costs required for all the permissions would be crippling.

Fair use turns on a context-based four-factor test. The four factors are: (1) the purpose and character of your use (transformative, critical, scholarly uses are more likely fair uses), (2) the nature of the copyrighted work (nonfiction or less creative works more easily support fair use), (3) the amount and substantiality of the portion taken (using a small, not large, portion), and (4) the effect of the use upon the potential market of the copyrighted work (a more limited harm). For “de minimis” uses, of particularly small amounts of the copyrighted work, courts do not even bother to engage in the four-factor fair use analysis. There is simply a “de minimis defense.”  (See here.)

Because snippets for search engines are transformative in purpose, use content that is more fact than creative fiction, use only a small amount of content, and have minimal effect on the value of the content (even for Yelp), their use by search engines likely constitute a “fair use.” The few circuit courts that have addressed similar questions have agreed with this analysis. (See here, here, and here.) Indeed, some snippets may even be “de minimis” uses that do not trigger fair use analysis.

No Copyright Violation

If Google’s competitors disagree with my fair use analysis, they could sue Google for copyright infringement to test the question. Copyright penalties are stiff, often thousands of dollars per infringement, depending on the work. So, the competitors have more than enough incentive to sue if they think they can win: Google might have to shell over millions for copyright infringement for little snippets. But Google’s competitors have not sued Google for infringement, despite their complaining. One reason for this is simple: they’d lose their case. The second reason is just as simple: if they were to win their case, and then sites like Bing and Yahoo and most other sites online would be subject to huge copyright penalties for facilitating infringement through snippets. Instead, Google’s competitors do not sue but merely refer to the use of snippet as “theft” and “basically theft” (pages 30-31)—even though Google’s use is most likely legal under the fair use statute and therefore protected under the First Amendment accommodations to copyright.

An Antitrust Violation Nonetheless?

As a result, rather than claim Google’s use of snippets violates copyright law, they claim instead that it violates the antitrust law. This argument is peculiar. To my knowledge, exercising fair use has never qualified as an antitrust violation. Moreover, to my knowledge, preventing a company from exercising fair use has never been imposed (or suggested seriously) as an antitrust remedy. Indeed, far more often, it is the use of copyright, not the exercise of fair use, that is the root of anti-competitive behavior. Tim Wu wrote an article years ago about how dying distribution mediums use copyright and “content lock-out” anti-competitively. The remedy there is generally the compulsory sharing of the content. With Google’s search snippets, however, the competitors want special rules to forbid Google from exercising a right to fair use of content–though their rules would conflict with both the Copyright Act and the First Amendment while dramatically raising Google’s transaction costs to merely display search results today.

We can use Yelp as an example here. Yelp essentially claims that Google’s insistence on following fair use is a coercive agreement that violates antitrust law. Google will agree not to index any site that wishes not to be indexed. There is a even simple convention in the code of a site (robots.txt), as well as new companies offering differentiated services such as Distil.it. But Yelp doesn’t want to exclude Google from crawling and indexing its site. Rather, Yelp wants to have control over how Google displays snippets and information from Yelp in Google search results after Google has crawled the site. This would be analogous to Hemingway sending his book to the New York Times Book Review (i.e. making his book “crawl-able”) but then saying he wanted control over how the Times could quote him—whatever fair use would permit. Indeed, he insists that the Times could only quote pages 3, 10, and 32 of his book and write the review in Helvetica font, not Times New Roman. The Times might respond that Hemingway need not send his book to the Times at all—but that if he does the usual standards of fair use will apply. Could Hemingway then complain that the Times is giving him no choice at all because not being reviewed in the Times is necessary to reach readers?

The Yelp complaining is similar: whatever fair use permits, Yelp argues that Google should instead abide by whatever terms Yelp sets for display and that Google is not allowed to walk away based on the terms demanded–otherwise it would be threatening Yelp with the “webicide” of not being included in Google. The Yelp situation is even more problematic than the Hemingway hypothetical: if Google were forced to display snippets from all sites it crawled as those sites wished, rather than crawling sites without robots.txt and relying on fair use, it would be forced to hand control of its results to millions of conflicting sites without the ability to walk away from unreasonable demands. As a result, Yelp can only be asserting that Google acts anti-competitively by insisting on respecting fair use. There is no precedent (or logic or public policy) supporting this argument.

Courts would be unlikely to haphazardly discard fair use and adopt a radical (unpredictable, perhaps unconstitutional) expansion of copyright’s costs on search engines. It is their proposed remedy–not the long-established “traditional contour” of copyright law known as fair use– that should be discarded.

(Disclosure: I am an adviser to Google, but my ideas here are my own and should not be ascribed to Google.)

Marvin Ammori has been named one of the New America Foundation’s 2013 Bernard L. Schwartz Fellows. Prestigious and highly competitive, the Schwartz Fellows Program supports leading  journalists, academics, and public policy analysts in crafting  critical analysis and perspective  on important challenges confronting modern society.

Former Schwartz Fellows who are legal scholars include Columbia’s Tim Wu, Harvard’s Noah Feldman, and Duke’s Jedediah Purdy. Since I was one of his students when Marvin was a law professor, I’m happy to see him in such good company.

New America itself “invests in new thinkers and new ideas to address the next generation of challenges facing the United States,” and does significant work in promoting technology and innovation, in addition to its efforts in other policy areas.  Some of the acclaimed books authored by Schwartz fellows include Rebecca MacKinnon’s Consent of the Networked, Noam Scheiber’s Escape Artists, Nicolas Schmidle’s To Live or to Perish Forever: Two Tumultuous Years in Pakistan, Liza Mundy’s The Richer Sex: How the New Majority of Female Breadwinners Is Transforming Sex, Love and Family, Tim Wu’s The Master Switch: The Rise and Fall of Information Empires, Nir Rosen’s In the Belly of the Green Bird: The Triumph of the Martyrs in Iraq, and Peter Beinart’s The Crisis of Zionism.

Marvin will be writing a book on challenges facing the First Amendment in the twenty first century, drawing on his law review writings and focusing on topics such as network neutrality, SOPA and PIPA, and the digital speech issues of tomorrow.

Like Wu and Feldman, Marvin will keep his day job while a fellow, and will continue running the Ammori Group, working on cutting edge legal and policy issues and providing expertise and advice to our great clients, something of which I’m quite proud to be a part.

Concurring Opinions, a top legal blog, is devoting an online symposium to an important new book that should profoundly influence how we think about “infrastructure,” about property law, and about some of the economic benefits that direct market participants don’t (and maybe shouldn’t) capture. The book may also change how you think about communications networks and environmental resources.

I’m participating in the symposium, and have learned a lot from the book and the author.

Here is my first post on the book. More about the book (including order information) is available through Oxford University Press.

Luke and I wrote a “conversation” column in the Sacramento Bee, published Easter Sunday. The story is available here. Thanks to all those who have discussed these issues with us.

Here is the last paragraph. The entire article is worth reading as an overview, in our opinion:

One way to increase our security is to raise the level of discourse, understanding and involvement of more Americans in this important debate. This can be accomplished in part by understanding different cyberthreats and understanding the potential threats to civil liberties. This would place policymakers and the public on a similar footing for discussing the issues. Doing so will also help to ensure that decisions about our economy and security are made as democratically as possible, in the open and not taken without adequate public discussion about the role of industry, the leadership of civilian authorities and the protection of civil liberties.

(Published today in The Atlantic)

Just because its justices are not elected doesn’t mean they’re not political. It’s time for some public accountability.

Recently, there has been considerable debate over whether President Obama should run against the Supreme Court as part of his reelection campaign. High-ranking Democratic Rep.James Clyburn has endorsed the idea, and Obama himself has seemed to test the waters with anticipatory criticism of a decision striking down his health-care law as unconstitutional.

But there’s a strong case to be made that Obama should run against the Supreme Court however the health-care case turns out, and that his campaign should begin that effort today. He should run, specifically, against the five justices on the Court who span the spectrum from conservative to very conservative: Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito.

There are two prominent objections to running against the court. But a closer looks shows why they should carry less weight than they now do.

Read the rest at The Atlantic

Here it is.

A well-known conservative federal judge in Texas, Judge Jerry Smith, engaged in a “disgraceful” “hissy fit”–or asked a reasonable question, depending on your point of view. In response to recent comments by Obama that courts should defer to considered judgment by a duly elected, enacting Congress, Judge Smith asked the DOJ to file a brief letter affirming judicial review in a case.

The Attorney General filed a short letter. For those who speak “lawyer,” we can translate the text as DOJ’s polite way of saying: “The President is right, the courts have said so repeatedly, and you are completely out of line.”

It reminds me of the scene in the Other Guys, “Tuna v. Lion,” where Will Ferrell turns Mark Walberg’s arguments against him and ends “Did that go how you thought it would go? Nope.”

Here’s the clip, with Will Ferrell playing Eric Holder and Mark Walberg playing Jerry Smith.

Bloomberg has an excellent story about the undisclosed political money spent by corporations and energy interests during 2010–made possible by the Supreme Court’s notorious Citizens United decision.

This quote jumped out at me:

The non-party organizations that don’t disclose their donors increased their spending to $133 million in 2010, compared with $875,000 during the previous off-year elections in 2006, according to the Center for Responsive Politics, and favored Republicans by a ratio of 10-to-1.

That is, the decision resulted in a 150x increase in spending among such groups. And the spending was 10x more likely to help the party that appointed all five Justices in the Citizens United majority.

Here is the published version of my recent article, First Amendment Architecture. It is the lead article in the current volume of the Wisconsin Law Review.

Please read it!

Also, obviously, I’d like to extend a big thanks to the Wisconsin Law Review staff. Their editing was extremely helpful and they managed to deal with considerable editing and reorganization after acceptance.

Also, thanks to the folks at Concurring Opinions and to Stanford Technology Law Review for online and in-person symposia on the article. Both symposia, along with feedback from many friends, improved my thinking considerably.

According to reports, the Federal Trade Commission is releasing their much anticipated report on consumer privacy today, at 11am.

UPDATE: Here is the report (pdf).