Google? Evil?

evil 1

A few folks on Twitter have asked for my reaction to the accidental sharing of an FTC staff report on Google, wondering whether it will cause me to eat Crow McNuggets given that I am known to defend Google against some of the frequent attacks against it.

It’s difficult to judge the entire FTC report based on the excerpts and reports written by The Wall Street Journal. I figured the best I could do would be to ask myself where I draw the line between evil and good, illegal and legal in the behaviors alleged against Google.

* * *

First, the coverage says that Google scraped content from Yelp, TripAdvisor, Amazon, and other sometimes-competitors. Well, of course, Google scrapes content everywhere; that its Job 1. Scraping is no more illegal or evil than reading, just a helluvalot faster. Any site can stop scrapers at the door with robots.txt instructions. Once scraped or read, information itself cannot be copyrighted, so there is nothing evil or illegal about consuming, using, and repeating that information.

It does not violate copyright law to reuse the information itself so long as the use does not infringe on its creator’s presentation of it. In other words, I can read on Yelp that a restaurant is open until 10 p.m. and repeat that in a restaurant listing on my newspaper site without fear; it’s information. (Whether I trust the source of that information and whether I link to it are separate questions that are also worthy of discussion in regards to journalism, where we read and repeat for a living.)

I see nothing wrong with Google and other search engines scraping and retaining content from a site in their unseen databases for the purpose of analyzing that content to decide how to present links to it in search. It is in sites’ enlightened self-interest for that to occur.

I also see nothing wrong with quoting from these services’ content for the purpose of linking to them. I would call that fair use. This is the behavior at the heart of the fight with publishers in Germany, where the word “snippet” is now a legal term, though — like “fair use” — it is not and should not be precisely defined. This is also the behavior that is now being taxed in Spain — that is, those quoting and linking to sites are now required to pay those sites, whether the quoted sites demand it or not. This is what led Google to shut down Google News there. With this law, Spain has attacked the heart of the web.

Now here is where the line would be crossed: If Google republished these services’ content in whole and without permission, then that is a violation of copyright law and Google would be in the wrong. Google and Yelp have tussled over just this in the past; Yelp’s reviews appeared on then disappeared from Google’s Places pages. The Journal’s report says:

When competitors asked Google to stop taking their content, it threatened to remove them from its search engine.

“It is clear that Google’s threat was intended to produce, and did produce, the desired effect,” the report said, “which was to coerce Yelp and TripAdvisor into backing down.”

I can’t tell exactly what happened here. If Google did indeed threaten to stop listing Yelp in search if it stopped Google from wholesale republishing its content, then I would call that an improper use of its power: evil. But I am not sure that is what happened. Yelp disappeared from the Places pages (which since themselves disappeared) but Yelp stayed in search (that’s how I get to it all the time). So without more information, I can’t draw a verdict on this point.

* * *

The next question is whether Google favors its own services in search. I’ve long found this allegation odd. First, publishers routinely promote their own services and fail to promote competitors’. When European publishers attacked Google, they complained that when searching on “running shoes” one finds Google’s ads for its own shoe advertisers and partners atop the page. But I have pointed out that if you go to the “Schuhe” link on Bild.com — the largest newspaper in Europe, owned by one of Google’s betes noires — one finds no promotion of competitors’ offerings. On Google, one does indeed find ads from its shoe advertisers and retailers, clearly labeled, but then on the top screen one also finds links to their competitors in shoespace, Zappos and Nike.

Screenshot 2015-03-21 at 5.05.47 PM

And if one searches for “maps” one finds Google Maps first (they are the best) but then links to competitors Mapquest, Yahoo, and Bing. What publisher does that? Aren’t news organizations supposed to be impartial? Then under this doctrine shouldn’t People promote Us?

That’s an even odder expectation of Google: that it be impartial. I know of no law that decrees that search must be impartial. Hell, a U.S. district judge said that Chinese search engine Baidu had a First Amendment right to be partial and censor search results. I would find it even harder to define impartiality in search than I would in journalism. In fact, I want my search results to be partial, to favor quality, originality, authority, relevance (to my request and ultimately to me), and timeliness (when that is relevant). Impartial search would be noisy, spammed, useless search.

Also note that history’s first ads in search — on Bill Gross’ GoTo.com, which became Overture, which was acquired by Yahoo — featured paid placement in rather than merely alongside search. Indeed, Google had to pay Yahoo $300+ million in settlement for infringing on the patent for advertising in search from Overture. But along the way, it was Google itself that instilled in us the idea that ads should not appear in search and that one should not be able to pay for placement. So Google set that standard. Now it’s true that the FTC makes it living holding commercial entities to their own standards. But to be found guilty of such consumer fraud, Google must have made the promise to which it is now being held. Does it? In its principles, Google says ads should be relevant and labeled — and they are — but doesn’t say anything that I can find about impartiality.

Now if it’s true that Google purposefully and secretly downgrades competitors, I would find that to be a betrayal of the trust we hold in it: evil. I don’t know whether that’s proven here. If Google promotes its own sites without labeling that as promotion, I would find that hypocritical, but I also don’t know whether that is happening here.

* * *

The next allegation in The Journal’s report is that Google restricted advertisers from using data obtained while advertising on Google in campaigns placed on competitors’ services. I’m not sure precisely what this means but I will say that Google — a company that believes information should flow freely — should allow brands that have paid to advertise to use whatever intelligence they gain however and wherever they wish. More broadly, I have argued that point in posts about what both Google and Facebook could do for news, advocating a freer exchange of data about users and content. In any case, The Journal says Google revised its terms to “give advertisers more control over their own ad-campaign data.”

* * *

Finally, The Journal says (in an abbreviated graphic) that Google tried to restrict sites that did search deals from also doing deals with competitors, including Bing. I’d call that just stupid: a red cape for antitrust investigators. The Journal said one investigator cited a lack of evidence of this complaint.

* * *

Please keep in mind two things about this report. First, Journal owner Rupert Murdoch has what one might call in my impolite company a hard-on for Google. Second, a much more reasoned Washington Post report explains that the accidentally leaked report was from the FTC’s lawyers, who tend to itch for antitrust fights, while a separate report from the agency’s economists — who look for impact of companies’ behavior on consumers — argued against taking on Google.

Let’s also remember that it’s the market that made Google as big as it is. In Germany — the front line of the war against Google — the company has its second highest market penetration of anywhere in the world, 50 percent higher than in America. German consumers obviously use and apparently like Google and I must ask whether their media and government are in sync with them. Google argues — and I agree — that there are perfectly good alternatives for every consumer service it offers: Bing for search, Mapquest for Maps, Outlook for mail, and so on.

But — and this is a huge but — there is no easy alternative for advertisers. That is where I have long argued that Google is vulnerable to accusations of abuse of power. When it comes to which advertisers are deemed to be bad actors, Google wields the power of God. Some shopping comparison sites are pure spam and Google is right to ban them. But should we always trust Google to make that decision? I’ve suggested that Google should have a jury of commercial peers help with that judgment.

My bottom line: If Google secretly disadvantages quality — not spammy — competitors, that would be wrong. If Google presented others’ *complete* content without permission and ejected sites that resisted such wholesale copying from search, that would be wrong. But in the Journal report, I don’t see sufficient evidence of either act to definitively declare guilt. More to the point in the discussion of antitrust at the FTC and in Europe, I don’t see cause to break up the company.

The other day, I spoke at length with a European journalist who disagrees with me about Google, Silicon Valley, Eurotechnopanic, and regulation. She reflexively leapt to regulation as a necessary reaction to any company that grows “too big.” I asked her, as I ask many with whom I have this conversation, to show me the statutory definition of “too big.” The issue is not how big a company is but what it does with that size. The issue is not what a company could do with that power but what it does with that power. I also asked her to show me why I should trust government to do a better job managing these processes than the market. The market took care of Microsoft’s excesses, not the EU. And governments in Europe are doing much to damage the net, from the Germany’s Leistungsschutzrecht to Spain’s link tax to the EU court’s right to be forgotten. I acknowledge that I sound like a libertarian when I say this but I will point out that I am a Hillary Clinton Democrat. But I do not favor regulation for regulation’s sake.

I sometimes wish Google would fuck up more so I could criticize it more often. I have criticized Google. But I have defended it because I generally find it to be a good company and because it is often the whipping boy for those who would attack not just Google but the net and its disruption as well as American technology companies. If on the basis of the Journal report you want to see me repudiate Google and call for its dismembering, sorry.

The crow flies. It doesn’t fry tonight.

crow in flight

  • John Gibson

    I’m not sure I’d agree that it was the market alone that took care of Microsoft’s excesses. The anti-trust investigation emasculated Microsoft and greatly influenced for the worse what came out of Redmond. In other words, while I do think the market would have eroded some of Microsoft’s position anyway that without the anti-trust distraction the Microsoft of today would be in a completely different place than they are today.

    One benefit of how things played out is that with Microsoft being relegated to where they are now today it’s leading them in fascinating directions. What is shocking to me and something I never thought I’d see is that Microsoft has converted itself into an extremly interesting company again. I never thought I’d see the day where Microsoft is more cross platform than Google is.

    With Google, I think they are very lucky that they aren’t being put under the microscope of a full blown investigation. im happy that they aren’t as even though I have no doubt they sometimes cross the line I think the remedy would be more damaging unless/until there is clear evidence that it’s become their standard operating procedure to operate across the line.

  • The thing is, only Google should have the final say about what goes on their search engine. All things considered, I’d say they’re far from evil, I’d call them charitable. I don’t know where people and especially the government, got this idea of holding Google to a higher standard than any other search engine. Can you imagine if a search engine on my website were required to search other websites?

    Also, for your perusal, Intelligence Squared just debated whether the ‘right to be forgotten’ should be adopted in the US. (It’s an hour and a half.)

    https://youtu.be/yvDzW-2q1ZQ

    SPOILER: —-[[The votes overwhelmingly say no.]]—-

  • steve

    so “relevance” in search ranking is defined in how relevant the publisher or term is to one of google’s gazillion businesses?

    and that’s ok provided everyone is under no illusion otherwise.

    schmidt’s cozy relationship to the current admin says to me that this “inadvertant” leak was anything but except short of bringing some sort of ftc action was barack’s bailiff whacking google’s pee-pee.

  • Tonia Addison-Hall

    Just because something’s legal doesn’t mean it’s RIGHT.

  • Thanks for this analysis, Jeff!

    Sure that Google could afraid some web-users in Europe.
    Especially in France.
    A popular channel has diffused very recently a documentary about Google’s Business and its threats about personal privacy:
    http://www.m6.fr/emission-capital/22-03-2015-google_au_c_ur_du_geant_qui_veut_changer_le_monde/

    For exemple, it was said that Google’s car could influence the users to shop in Google’s maps locations.

    Regards,

    Hadrien

  • John Gibson

    I was reading some more about this leak. I suspect why this didn’t go anywhere may have more to do with the ~$13 million dollars Google spent bribing (err lobbying) in 2012. Microsoft wasn’t smart enough to have had a big presence in Washington in the late 90s, early 2000s to buy themselves better results with the government.

  • Aaron Barrett

    This is a great analysis Jeff! I read the Journal report as well and did not see any damning information about Google. I do appreciate your points on impartiality. I think many (including myself at times) believe everything must be impartial, but in reality we need partiality in our searches for quality, pertinent, and timely results. I think the biggest takeaway for me is your suggestions for Google. In your article “What Could Google Do for News” you state that the whole purpose of Google is to organize the world’s knowledge and make it accessible; and I think with that as Google’s mission statement, along with your suggestion of a jury of commercial peers, Google could excel exponentially and its reputation would be above reproach.

  • woke

    It’s “funny” how none of the “Google is too big so it must be regulated” folk ever apply the same reasoning to govts which are much larger, coercive, and unavoidable.. Google can’t throw people in jail. Govts do. I can refuse to give money or data to Google regardless of what my neighbors do – try that with the German (or any) govt.

    The complaints about Google are basically that third parties don’t control what Google does with people who want to do business with Google. It has nothing to do with size or power, as those third parties are typically much larger and more powerful than Google.

    I don’t like Google, but if the alternative is the US or German govts, I’ll take Google.

  • George Khaimov

    Conversely, if Google had isolated the data and concealed it, they’d be accused of being in cahoots with private companies. This is a case where information has to be entirely open or selectively, but I don’t think this has anything to do with attacking Microsoft, which is the way it’s been mistakenly portrayed in the media.

    –Emil Isanov, Etech 7, Inc.

    http://www.etech7.com/

  • John

    Use DuckDuckGo (duckduckgo.com) better Search Engine (it doesnt affect privacy, btw you should care your privacy concerns, search for Google tracks you, and cases like NSA ones), and has good search results, mobile version, and is secure than other Search Engines.
    Furthermore Google makes really scary foundations and adquisitons.

    • Mark

      Good one, i’ve using for long time and i use it all the time.:) It has good design, is all customizable like themes, regions language ,etc. Recommended

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