Last Friday, Google announced a major update to its search engine algorithm that will lower the ranking of sites hosting unauthorized content. We at FMC think this is a good thing: why should musicians and independent labels have their official pages show up lower in search returns than those offering illegitimate wares? There are, however, some legitimate questions about how this new search rubric will be managed, and to which sites and services it will apply.

According to Google, the algorithm will be based on “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 reasonable, right? If a site recieves a lot of takedown requests — a process outlined in the Digital Millennium Copyright Act (DMCA) — their search rankings will drop. Google, however, has not offered any info as to how many notices it takes to trigger the downgrade. Again, we think it’s great that the company wants to promote legitimate sites and services ahead of the shady operators, but a little transparency would go a long way towards giving artists, internet users and other service providers confidence in the policy.

And, just because a site or service receives a lot of DMCA notices doesn’t mean it’s not legitimate. Take Google’s own YouTube, for example. That platform has done a lot to give rightsholders flexibility in managing how they deal with infringement, but there are still plenty of instances where a content owner decides a use is verboten. If Google’s new search algorithm were applied evenly across the board, wouldn’t YouTube’s rankings be severly diminished? Apparently, Google is avoiding this by making YouTube’s takedown form seperate from its regular DMCA request page. This ensures that YouTube content will continue to apear high up in user searches. Clever, sure. But fair?

(This just in: Google talks about how “nuances in calculating the penalty should save popular user-generated content sites” and not just YouTube.)

Another thing to keep in mind is that Google isn’t the central repository for every single DMCA takedown request. Sure, they get a lot of them, but so do Internet Service Providers and individual websites. Is Google confident that its algorithmic ninjatude is representationally sufficient? (It very well could be, but we still wanna know.)

Lastly, there is the possibility that less virtuous netizens will try to game the system in an anticompetive fashion. What’s to stop a company, website or service from spamming Google’s DMCA portal with requests in order to diminish a rivial’s rankings? And how would this affect the viability of innovative new services that haven’t yet gotten their licensing ducks in a row? Once upon a time, that was YouTube.

Again, we want to stress that we think it’s a good thing that Google is trying to promote the legitimate digital marketplace by putting sanctioned sites up top. Musicians will definitely benefit from having their stuff appear first, and we imagine that users will get accustomed to the new way of the web. We do hope that Google will take steps to make its processes more transparent, however. Or else what now seems altruistic could be in danger of becoming self-serving.

It’s interesting that this new approach to search rankings is based on the DMCA’s notice-and-takedown provisions. Although many in the creative community will applaud Google’s algorithmic tweak, many rightsholders haven’t been at all shy about their distaste for this part of the DMCA. Why? Because they think that it places too great a burden on the content owner to fire off notices. You can kind of see their point: back in 1996, when the law was crafted, user-generated platforms like YouTube, Facebook and Twitter were but a twinkle in developers’ eyes. Now, with some of these services achieving a scale that is truly global, there’s a tremendous amount of unauthorized uses to keep up with. Making a living from music is hard enough without having to spend time trying to navigate a complicated process to get unauthorized files taken down — especially if you don’t have the resources of a major label to send out takedown notices on your behalf.

On the other hand, the notice-and-takedown requirements are arguably what allowed for the very platforms that are helping to define the new music ecosystem. By offering sites a “safe harbor” (provided they comply with the notice-and-take-down provisions), the DMCA let innovation flourish and made it so musicians and other artists could use emerging platforms to publish their creations around the world with a single mouse click. That’s powerful stuff, and it leads us to think that, on balance, the DMCA is pretty okay for a law that was drawn up way back in the 1990s.

Still, there’s a lot that could be done to make all of these systems run more smoothly. Check out our recent comments to the White House’s Intellectual Property Enforcement Coordinator for some specific ideas. Then tell us what you think of Google’s new policy in the comments.

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