Google Will Fight Piracy Through Search Results, But Will Leave YouTube Unscathed

UPDATE: Please see note at bottom of post in response to a clarification from Google.
Google is smart. We all know that. Here’s a great bit of search engine cleverness of Kafka-esque proportions. How can you be seen by the entertainment industry as fighting piracy of copyrighted material and yet not have a negative impact on one of the largest infringers—who you happen to own?
To undertand this sleight of hand, you need to know a little about the Digital Millenium Copyright Act. The DMCA, passed in 1998, is an attempt to both protect the intellectual property (IP) rights of content owners while also exempting from liability the online service providers who host the pirated material. The act has been tricky to enforce as the line between service provider and content publisher has blurred in recent years.
Google is at the center of all of this because people often find pirated material online through Google search. As a service provider and not a publisher, Google is not liable for the material contained in its search results. But, search is achieved through algorithms, and Google’s algorithms reward popularity with more popularity. And free entertainment content is among the most popular on the web.
So Google, although not originally a host to this content, has promoted it by recognizing its popularity. Once Google acquired YouTube, the situation became a bit more complicated (understatement.) Now, it is both a service provider and content publisher. For a while, Google hid behind the idea that YouTube was merely plumbing for user generated content. But high-quality entertainment content has, from early in YouTube’s history, been a major draw. And as the company has attempted to monetize its traffic it has moved, inexorably, in the publishing direction.
On Friday, Google announced through an official blog post from SVP, Engineering, Amit Singhal, that:

Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results. This ranking change should help users find legitimate, quality sources of content more easily—whether it’s a song previewed on NPR’s music website, a TV show on Hulu or new music streamed from Spotify.

Sounds good, right? Instead of promoting piracy because its popular, Google’s search results will now penalize search results of sites with a high number of “valid copyright removal notices.” I was convinced.
But then I read a well-researched analysis on the blog Search Engine Land. The devil is in the details, and the particular detail Search Engine Land’s Danny Sullivan pointed to was the “What’s not included?” link on this page of Google’s vaunted “Transparency Report.” Click the link and you see that:

The data below consists of the copyright removal requests we’ve received through our web form for Google Search. It is a partial historical record that includes more than 95% of the copyright removal requests that we have received for Google Search since July 2011.

• Requests for products other than Google Search (e.g, requests directed at YouTube or Blogger) are not included.

In short (and there is much more detail on this in a second Search Engine Land post), Google is registering official DMCA takedown requests that come to it through a specified channel—that pertain to Google Search. It turns out that Google has created a different channel for copyright holders to request material be taken down from YouTube—and those requests are not factored into this new “signal.”
The specific mechanism of this is quite complicated, and Google has made it so. Copyright owners are corralled through a series of steps to the YouTube Copyright Center. There, they are given the option of filing a copyright infringement notification, submit multiple notifications through its “Content Verification Program,” or leave the material up and get a revenue share on the related advertising through a program called “Content ID.”
But, if I understand this properly, none of these options will lead to a “valid copyright removal notice,” that will show up on the Google removal requests that will act as a signal for search ranking demotion. Pretty clever, right?
This is one of the reasons why the Electronic Frontier Foundation and other advocacy groups routinely question these kinds of attempts at regulation, whether by governments or industry. As soon as they are in place (or in this case, before), big companies with resources will figure out how to game the system and solidify their dominant position. In this particular case, the EFF has criticized the lack of transparency in the process:

Earlier this summer, we applauded Google for releasing detailed stats about content removal requests from copyright holders. Now that we know how they are going to use that data, we are less enthusiastic.

One of the ways that Google has created an “alternate universe” for YouTube that insulates it from these negative signals in Google Search results is an interesting technicality. As anyone who has looked for entertainment content on YouTube has undoubtably come across, when material is disputed, the page does not disappear. Instead, the video player displays an alert message with an apologetic YouTube “face” icon and a message that reads, “This video contains content from [content owner's name here], who has blocked it on copyright grounds. Sorry about that.”
Google indexes pages, not granular content per se, so as far as search results are concerned, content that is “blocked” on YouTube is not “removed.” And a request to block does not create a removal notice. Gnarly problem solved.
Or rather, problem solved for Google, for the moment. The larger problem remains unsolved. Stewart Brand has been widely (partially) quoted as saying, “Information wants to be free,” but the full quote—from alost 30 years ago—still frames our current debate:

Information Wants To Be Free. Information also wants to be expensive. Information wants to be free because it has become so cheap to distribute, copy, and recombine—too cheap to meter. It wants to be expensive because it can be immeasurably valuable to the recipient. That tension will not go away. It leads to endless wrenching debate about price, copyright, ‘intellectual property’, the moral rightness of casual distribution, because each round of new devices makes the tension worse, not better.

The larger problem is that, as Brand pointed out, digital content is so portable because the cost of each additional incremental copy is so small. Although it may technically round to zero (free), those costs do become significant as they scale, as YouTube is well aware.

This portability leads inevitably to increased flow. That’s what we do with our intelligence, we figure out how to make things flow faster and more efficiently. And, like water, intelligent people will figure out all manner of ways to flow around impediments. This is why there will always be conflicts between content owners and content users. The point is not how to block content as much as how to insert useful “frictions” into flow systems to maintain the balance between the interests of both parties.
Maybe Google can work on that one next.
UPDATE: A Google representative contacted me to clarify that YouTube does not receive any special treatment in the initiative described in this story. According to the company, the new algorithm is designed to NOT penalize popular user-generated content sites, YouTube included (but not exceptional). I will follow up on this with my own research and thoughts in a post tomorrow, but in the meantime, please marinate in the intrigue—and let the poor anti-trust investigators enjoy their day at the beach!