Out-Law News | 27 Jan 2012 | 11:01 am | 6 min. read
The groups have proposed a voluntary code of practice for search engines in a bid to get them to engage more in tackling online copyright infringement. If adopted the code would also require search engines to relegate sites in their rankings for repeatedly making pirated content available and boost links to other "licensed" sites under a new "certification" scheme.
Under the suggested code search engines would also have to stop promoting pirate websites or placing ads on those sites. The code would also prohibit search engines from selling keyword advertising related to piracy terminology, whilst they would also be banned from selling mobile apps that help facilitate infringement.
The proposals were drafted by the British Recorded Music Industry (BPI), Motion Pictures Association (MPA), Producers Alliance for Cinema and Television (PACT), The Premier League and the Publishers Association.
The groups claim search engines that observe the code "would help to ensure that consumers are directed to safe and legal sources for entertainment content online and grow the UK digital economy".
However, the proposals have been described as "dangerous" by digital freedoms campaigners the Open Rights Group. The Group obtained a copy of the proposals http://www.openrightsgroup.org/assets/files/pdfs/proposals%20to%20search%20engines.pdf (9-page / 410KB PDF) under UK freedom of information laws. The Government has been chairing discussions between rights holders, internet companies and other stakeholders in a bid to establish self-regulatory regimes for tackling online piracy. The Government has previously announced its reluctance to introduce new regulation to address the matter.
"We propose that in order to further protect consumers and to encourage responsible behaviour among websites, the extent of illegal content on a website should become a factor influencing the ranking of that website in search results returned to consumers. In addition, where a site has been found by a court to be substantially infringing, it should no longer be crawled, indexed or linked at all," the rights holder groups said in their proposals.
The "mechanisms" for achieving this were not detailed, but the groups said they should be "simple and objective". They suggested rankings could be adjusted on the basis of the number of specific web-pages relevant to a website that have already been "de-listed" following a successful "takedown" request from rights holders. A value judgment on how "damaging" illicit material is to rights holders could also be used to determine the scale of rankings relegation that would apply, the groups proposed.
A "threshold" may also be established whereby any site engaged in "serious repeated or egregious infringement" could be temporarily or permanently de-listed from search results, they said.
Websites would be able to challenge de-listing requests, any de-listings would be published and search engines would not "face significant legal exposure" for their interventions, the groups said.
The groups also called on industry to put "appropriate certification programmes" in place to recognise websites featuring legal content and said search engines should then promote these certified sites above uncertified ones in search rankings. The programmes would need to be "transparent, open and non-discriminatory".
Prioritisation of sites would not occur in results for all searches, but in ones "where the consumer is clearly trying to access digital content to download or stream, rather than simply looking for information," the groups said.
"To use the example of music, we would propose that prioritisation be enabled for searches that contain any of the following key search terms: 'mp3', 'flac', 'wma', 'aac', 'torrent', 'download', 'rip', 'stream' or 'listen', 'free', when combined with an artist name, song or album title contained on a list to be regularly updated and provided to a search engine by a recognised and properly mandated agency representing rights holders for a particular sector, such as BPI," the proposals said.
Under a proposed code search engines should have to address the issue of advertising where "reputable" companies are associated with illicit content and pirate websites benefit from ad revenues on their site, the groups said.
Search engines should vet ad partners, stop all advertising on "substantially infringing sites and on search results pages that contain links to substantially infringing sites" and stop selling key words terms that are "are closely associated with piracy," the group said amongst other proposals. They said a separate code of practice was needed to govern internet advertising networks "generally".
"A code of practice for search engines should include measures to ensure that search engines do not support the business models of substantially infringing sites by supporting them with advertising and that they do not themselves profit from online infringement," the groups said.
Because of Google's "direct financial interest" in mobile applications sold to users of the Android operating system, the company should have to take particular action to address piracy in that market under the terms of the code, the groups said.
"Google (or any search engine that operates an apps platform) should: effectively screen applications to see if they are likely to substantially facilitate or encourage infringement or otherwise designed to facilitate infringement; take down mobile apps where it is aware that they are designed or known to be used to illegally download entertainment content, either via p2p [peer-to-peer] applications or unauthorized lockers; prevent apps from being reposted, or 'copycat apps' being posted, once an app has been removed as above; and terminate the accounts of developers that repeatedly post apps that facilitate infringement and prevent them registering new accounts," they said.
The code of practice should be voluntary but overseen by Government which should also report on the" functioning" of the code annually, the groups said. "This would help to ensure that, while meeting its objective of ensuring that search engines play a more responsible role in reducing online infringement of copyright, the Code of Practice would act proportionally within a wider public policy objective of freedom of general access to information online and healthy competition and access to online markets," they said.
Google was also challenged to improve some of the systems it has in place at the moment to help rights holders fight piracy. The rights holder groups said the search engine should speed up the process of removing "infringing links" and automatically de-list and remove caches for any website that is the subject of a court blocking order or where a court has judged it to be "a structurally infringing site". Google's system of suggested results for partially-inputed searches should also "not in any instance direct consumers towards illegal sources for content," they said.
The groups said it was "trivially easy" for UK internet users to access illegal entertainment content through search engines. Research conducted last year by the BPI found that, on average, 16 of the first 20 links displayed on Google following searches for each of the UK's top 20 singles at the time followed by the word 'mp3' pointed to illegal copies of the music, they said. For top 20 albums, 15 of the first 20 links suggested directed users to illegal content, the rights holder groups said in its proposal document.
Similar research revealing similar results was conducted by the Publishers Association for bestselling books, whilst other searches for films, TV shows and football highlights have found that search engines are generally displaying links to illegal content higher up rankings than other sites, the groups said.
"We believe that search engines have a role to play in protecting consumers and businesses by directing users to sites which comply with the law and do not propagate illegal content, host viruses and other damaging or inappropriate content," the rights holder groups said.
"While it will remain necessary for rightsholders to send takedown notices to illegal sites, and to continue to work with search engines to improve the procedures for de-listing sites and individual content items in search results, it is clear that the current regime will not be sufficient to ensure that search engines direct consumers first and foremost to legal places to acquire digital content. To achieve that, search engines will need to do more," they said.
The proposals were criticised by the Open Rights Group (ORG) as imposing restrictions on internet user freedoms and resembling controversial anti-piracy laws under consideration in the US.
"Yet again we're facing dangerous plans to give away power over what we're allowed to see and do online. The proposals come from discussions that lack any serious analysis of the problem and boast barely a glimmer of democratic input or accountability. The Government risk echoing the mistakes made in the US with the Stop Online Piracy Act. They need to stop being told what to do by a small number of businesses, and start listening to everybody else," Peter Bradwell, ORG campaigner, said in a statement.