The Googlization of Everything. Siva Vaidhyanathan
becomes so big that it’s kind of scary and needs to be regulated as a public utility?” The room filled with laughter before Schmidt could respond. So Lehrer, a knowledgeable and experienced interviewer continued: “We kind of reached that with Microsoft in the ‘90s, some of the same discussions. When you’re aggregating all of the contents of books, when Google News is the place that people go for news content instead of the sites—New York Times and everything else that you are aggregating—and you know some in traditional media are upset with you for that.
Seriously, literally, is there a point where you need to be regulated as a public utility?”
“You’ll be surprised that my answer is no,” Schmidt responded. “Would you prefer to have the government running innovative companies or would you rather have the private sector running them? There are models and there are countries where in fact the government does try to do that, and I think the American model works better.”
Lehrer interjected: “But Eric, if I could jump in, I would expect a more sophisticated answer from you. As we saw with the banks, it’s not a question of Soviet-style communism or free-market capitalism. Banks needed smart regulation that they didn’t have—as I think you were just saying. Is it possible that information is in the same boat?”
Schmidt started again:
Well, again. My answer would be no. Perhaps I should expand on my answer: Google plays an important role in information. And the reason you are asking that question is because information is important to all of us. We run Google based on a set of values and principles. And we work very, very hard to make sure people know what they are.… Companies are defined by the values that they were founded with and that they operate with today. So if you are concerned about the need for regulation of Google’s role, part of my answer would be that—independent of my leadership and the founders’ leadership and so forth, the company’s formed in a certain way. A thing that you should be worried about is that a combination of special interests plus unintended regulation could in fact prevent the kind of consumer benefits that we push so hard to do. Part of the other pushback that I would offer is that the things that we do are available to others.… We haven’t largely prevented people from doing their own thing.66
Of course Google is regulated, and Schmidt knows it. Google spends millions of dollars every year ensuring it adheres to copyright, patent, antitrust, financial disclosure, and national security regulations. Google is promoting stronger regulations to keep the Internet “neutral,” so that Internet service providers such as telecommunication companies cannot extort payments to deliver particular content at a more profitable rate. But we have become so allergic to the notion of regulation that we assume brilliant companies just arise because of the boldness and vision of investors and the talents of inventors. We actually think there is such a thing as a free market, and that we can liberate private firms and people from government influence. We forget that every modern corporation—especially every Internet business—was built on or with public resources. And every party that does business conforms to obvious policy restrictions. But Schmidt, who understands the state of political rhetoric in the United States, knew how to tease laughter out of the audience, and he understood that positing “regulation” as a choice of oppression over freedom would resonate.
Schmidt also knew that his best rejoinder to concerns about Google’s enormous power was to remind people of Google’s internal code of ethical conduct: “Don’t be evil.” Oddly, Schmidt asserts, without evidence or explanation, that this ethic would survive at the company regardless of who ran it and how far into the future we might look. Like so much else about Google’s public image, this is a matter of faith. Last, Schmidt asserted that Google was careful to avoid locking in content or locking out competition through computer code or restrictive contracts: in other words, it does not behave like Microsoft. If market entry is open de jure, on paper, then that should satisfy doubters, Schmidt argued. It is easy to elide the fact that real competition in many of Google’s successful areas of business such as search and advertising is almost impossible to imagine.
So if we push past the idealistic rhetoric of Google’s officials, we can see that the proper question is whether Google—or the knowledge ecosystem in general—is appropriately regulated. In some areas, Google might be regulated too lightly. In others, it might be overly or improperly regulated. There is no general notion of regulation that can apply to such a complex company involved in so many different areas of life and commerce. Sadly, we seem incapable of holding a reasonable debate on this topic because raising the question seems to violate the current standards of polite political discourse.
Google’s ventures can be arranged into three large categories of responsibility. By that I mean that Google has at least three ways of hosting content, each of which grants the company a different level of control over the content. Each category of responsibility demands a different level of regulation. The first category is what I call “scan and link.” Google Web Search is the best example of this. Google does not host the relevant content. Content sits on servers around the world run and owned by others. Google merely sends its spiders (a small program that “crawls” around the Internet, following hyperlinks from one file to another) out to find and copy the content onto its own servers so that it can supply links to the original content via Web Search. In this case, Google bears minimal responsibility for the content. If it links to illegal or controversial material, Google may remove the link, as in the standard “notice and takedown” process that governs much behavior on the Web, including copyright infringement in many places. In most areas of U.S. law, search companies are generally not held liable for the existence of the content on some third-party server. But in most other countries, including those in Western Europe, search engines are held at least minimally responsible for the links they provide. In France and Germany, for instance, Google must actively block anti-Semitic and other hate-filled sites. In less liberal countries such as Egypt, India, and Thailand, Google actively removes links to content that offends the state. But generally, Google has little responsibility for content hosted by others, and thus its search activities demand the lightest level of regulation.
The second category is what I call “host and serve.” Blogger and YouTube are the best examples of this. In these cases, Google invites users to create and upload content to Google’s own servers. As in the Viacom case, Google certainly bears some responsibility for the nature of the content it holds on its own servers. In February 2010 a court in Italy convicted three Google executives of failing to remove an offensive video that showed an autistic teenager being bullied by rowdy youths. Despite hundreds of comments on the page objecting to the content, Google was not made aware of its existence until two months after its posting, when Italian police requested its removal. Google has tried to argue that it should be held to the same level of responsibility for this content that it would have for a link to a third-party site. And there was much confusion in European law over what constitutes “notice.” In early 2010 an Italian judge ruled in a manner out of step with most European understandings of how notice and regulation should work in matters of privacy violations. Relying on bizarre reasoning, Judge Oscar Magi concluded that Google’s position as a profit-making venture limited its exemption from liability. Nonetheless, it’s clear that in situations in which Google solicits and hosts content—as with YouTube—it bears a higher level of responsibility and is likely to attract more litigation and regulation as a result.67
The areas in which Google has faced the strongest protest worldwide just happen to be those ventures in which Google has the greatest responsibility for content, what I call “scan and serve.” In these activities, Google scours the real world, renders real things into digital form, and offers them as part of the Google experience. The two best examples are Google Books, which has generated objections and lawsuits from authors and publishers around the world, and Google Street View, which has sparked actual street protests and government actions. In Street View, Google staff take cameras out around the globe to capture images of specific locations that can be used to enhance Google’s services, such as its map feature. In doing so, Google’s cameras also capture images of individuals and their property. In this case, Google bears great responsibility for creating the digital content as well as hosting and delivering it to Web users. And thus these actions justify the highest level of regulatory scrutiny.
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