A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister2

Search engines and PiracyA Discussion Paper by Mike Weatherley MPIntellectual Property Adviser to the Prime Minister

A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister2

Contents

1. executive summary 2. introduction 3. current climate

3.1. rights holders 3.2. legislation 3.3. the committee (dcMs select committee) 3.4. consumers 3.5. Google and search engines

4. initiatives to combat Piracy

4.1. Promotion / demotion of search results 4.2. site blocking 4.3. Advertising 4.4. Autocomplete 4.5. trust Marks and Warnings

5. Methods of enforcement 6. recommendations 7. conclusion 8. Appendices: (1) letter to PM re PiPcu (2) Google submission

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1Executive Summary

1.1i would like to thank all the main search engines for their cooperation in producing this report. this paper, however, is not a joint submission and i look forward to receiving formal responses from search engine providers Google, Microsoft and yahoo in particular.

1.2this document has recommendations for the secretary of state to consider and to stimulate debate in this area. it is not intended to be a definitive statement and cannot provide the in depth analysis that the resources available to a select committee or Government department would achieve.

1.3online piracy remains at a high level in the uk (valued at £400m for music and film alone)1. It is important to stress that search engines are not the cause of online piracy. however, research demonstrates that search engines play an important role in inadvertently guiding consumers towards illegal content and are well placed to be part of the solution. both rights holders, in submissions to me, and the culture, Media and sport committee (the “committee”) have expressed frustration by the lack of progress made by search engines in eliminating pirate material from search results. As the main provider of search facilities in the uk, it is widely felt that Google should take the lead in setting responsible industry standards for search. it has also been shown that consumers expect search engines to promote and guide consumers towards legitimate content.

1.4however, no one single player is capable of solving piracy, nor should any individual or company be responsible for solving the issue on their own. removing a domain from search results will not solve piracy – although it would be a very important step in the right direction. to focus on Google / search engines as the only “solution” to piracy would be inaccurate, unrealistic and a diversion from the main culprits. Google, in my opinion, should not be “blamed” for piracy, as they often are, and should be congratulated for positive engagement with this report.

1 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf

A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister2

1.5rights holders have called for Google to implement certain initiatives, including prioritising search results based on their legality, removing Autocomplete suggestions interlinked with piracy, incorporating “trust marks” to denote legal content and delisting / removing sites that are subject to a high court order for illegal content. cutting off the revenue streams of pirate sites by removing their ability to advertise is also considered to be an effective means of helping to prevent piracy2. Google has already incorporated some of these measures into its piracy policy. i am pleased that Google has engaged positively with me in exploring these and other issues discussed in this paper.

1.6it is hoped that the open collaboration from Google and rights holders that this paper has seen will continue, as it constitutes the key to building a safe and responsible digital marketplace.

2 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf

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2Introduction

2.1the uk is digitally advanced, with a greater use of online commerce than other european nations and more legal music services than any other country in the world3. however, online piracy continues to pose a great challenge to our creative industries by creating widespread economic damage, estimated to amount to roughly £400 million in lost annual revenue as a result of film and music piracy4. the economic impact of piracy on the creative industries is crippling; it threatens innovation and stifles the development of new artists and content. the uk is one of only three states who are net exporters of music worldwide, contributing to the uk’s exchequer. the creative industry provides thousands of jobs and is central to our economy; ensuring this continues and flourishes should be a top priority for everyone.

2.2since being appointed the intellectual Property Adviser to the Prime Minister, i have advocated that the prevention of piracy involves a threefold approach; education, carrot and stick. this takes the form of educating consumers (which should be an objective of both Government and industry), ensuring the availability of legal content by reacting to consumer demand (a responsibility of industry) and, once we have won the “hearts and minds” of consumers and provided suitable content, enforcing copyright law (a responsibility of Government). this has been further extended to suggest “Follow the Money” initiatives. For “Follow the Money”, the importance of strangling the source of revenue for pirate sites cannot be overestimated and ultimately, in my view, has the potential of fighting piracy to a much greater extent than the measures suggested in this report which are specific to search engines. the potential impact of “Follow the Money” is so significant, and the challenges to bring all persons involved together so large, that i will do a separate paper on this due to be published in June.

2.3the success of creative industries “depends on certainty in the legal environment and on copyright law” 5. consumers must be educated to understand that using pirated content results in an inferior product and inhibits the creation of future products. so too must attractive, easy and legal business models for access to copyright material be widely available to consumers. search engines also have a clear important role to play in the fight against piracy on all three counts.

2.4the general consensus from submissions received from rights holders is that the current initiatives employed by search engines to combat piracy are inadequate, which is a position strongly supported

3 bPi. “bPi response to the draft ofcom Annual Plan 2013-14”. Available at http://stakeholders.ofcom.org.uk/binaries/consultations/annuealplan1314/responses/bPi.pdf 4 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf 5 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf

A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister4

by the committee6. rights holders have suggested a wide array of preventative measures available to search engines and this paper will explore the appropriateness and viability of such measures. in turn, search engines have proposed a number of initiatives that rights holders could employ to prevent piracy. the focus of this paper is on the role of search engines specifically and this paper will therefore not explore in detail initiatives available to rights holders, although clearly such initiatives should be considered.

2.5Whilst this paper refers in the main to Google, the principles discussed are clearly applicable to all search engines in general. however, it should be noted that rights holders feel that, as a result of the position of leadership resulting from its overwhelming market share, Google has a particular responsibility above other search engines to take a strong stand in counteracting piracy.

2.6Recommendation 1: I propose that all search engines should adopt the suggestions set out in this paper, but that Google needs to show market leadership, as it is, by a significant margin, the largest provider of search in the UK. I would welcome a response on each recommendation individually.

6 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf

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3Current Climate

3.1 Rights holders

3.1.1rights holders including (but not exclusively) the international Federation of the Phonographic industry (“iFPi”), recording industry Association of America (“riAA”), british recorded Music industry (“bPi”), Prs for Music (“Prs”) and Motion Picture Association of America (“MPAA”) have been active and outspoken about the role of search engines in combating piracy. Whilst rights holders recognise that Google in particular has taken some positive steps to combat and counteract piracy, they strongly believe that Google, given its technical expertise and resources, must do more7. the recorded music industry has sent Google over 100 million piracy notices, many of which, it concludes, have not been acted upon8. (note – Google reject this assertion stating that 98% of requests have resulted in removal and the remaining 2% is as a result of a rights holder already requesting the same removal or inaccuracy of request. indeed, the bPi has confirmed that generally notices under the us digital Millennium copyright Act (“dMcA”) as referred to in paragraph 3.1.3.1 are acted upon). rights holders claim that they have on the whole taken a practical approach and seek to target extreme piracy sites rather than low level infringement. certain rights holders have suggested specific initiatives for search engines and these are explored below.

3.1.2IFPI: the iFPi (alongside the riAA and the bPi) has asserted a view that Google has failed to meet the commitments set out in its public announcement in August 20129 that it would demote sites in search listings if it receives a certain number of valid copyright notices. in particular, the iFPi, on behalf of the recording industry, urges Google to:

3.1.2.1Fulfil its promise to demote sites receiving extensive numbers of notices;10

3.1.2.2Make sure that take downs of illegal content are not just temporary;11

3.1.2.3help consumers find legal content, for example by way of a trust mark;

3.1.2.4change the way the Autocomplete search function works; and

7 riAA, 2013. “six Months later – A report card on Google’s demotion of Pirate sites”. Available at http://76.74.24.142/3cF95e01-3836-e6cd-A470-1c2b89de9723.pdf 8 iFPi, 2014. “After 100 million piracy notices, it’s time for Google to take meaningful action to help curb online copyright infringement.” Available at http://www.ifpi.org/content/library/iFPi_blog_Google_Jan2014.pdf9 Google, 2012. “An update to our search algorithms”. Available at http://insidesearch.blogspot.co.uk/2012/08/an-update-to-our-search-algorithms.html10 in discussions with me, Google has confirmed that this does happen.11 Google has responded that this is due to new pages being added with new infringing content and that those specific links which have been taken down, remain down.

A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister6

3.1.2.5ensure its policy on piracy has teeth.

3.1.3BPI: the bPi has campaigned for search engines to play a more proactive role in removing illegal content from their search results and has been actively involved in discussions with search engines. the bPi has suggested four key initiatives in their submissions to me that search engines could employ which i have reproduced as follows for this report without comment from myself:

3.1.3.1implement effective procedures to ensure that sites which are known to host large amounts of copyright infringing material, because they have been the subject of large volumes of notices under the dMcA, are significantly demoted in search results, so that they do not appear in the top results displayed to consumers;

3.1.3.2Wherever practicable, display trusted information to consumers to help them identify legitimate sources of content;

3.1.3.3substantially mitigate technical and operational constraints limiting the ability of rights holders to identify and notify illegal urls for removal;12 and

3.1.3.4voluntarily delist sites which have been the subject of a uk high court order finding that they infringe copyright and that it is appropriate for them to be blocked.

3.2 Legislation

3.2.1the digital economy Act 2010 (the “deA”) introduced a raft of measures to tackle online piracy, including sending letters to those who persistently infringe copyright and allowing courts to grant injunctions to block pirate sites. however, its implementation into secondary legislation has been repeatedly delayed which, as noted by the committee, means that “millions of pounds are being lost by the creative industries with serious consequences for the wider economy.”13 it remains unclear if and when the deA will be implemented but in any event, the deA is “primarily about education”14 and does not provide a one-stop solution to piracy; it is essential that its measures work in tandem with additional initiatives to achieve the “comprehensive, multi-pronged approach” that digital piracy demands15.

12 Google has responded saying there is no limit on the number of pages that the bPi or others can request to be taken down.13 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf14 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf15 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf

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3.2.2rights holders have sought orders against isPs to block websites facilitating the mass infringement of copyright under s97A copyright designs and Patents Act 1998 (“cdPA”). the cdPA allows the high court to grant an injunction against an isP “where that service provider has actual knowledge of another person using their service to infringe copyright”. this provision has been successfully relied upon in blocking notorious sites newzbin216 and the Pirate bay17 as well as around 30 other services.

3.2.3in taking these decisions, the courts have been careful to maintain the balance between, on the one hand, freedom of speech and the provisions set out in european law which preclude obligations of active monitoring being imposed on service providers and, on the other hand, the rights of copyright holders. the court of Justice of the european union has indeed recently endorsed the principle of these blocking injunctions18.

3.3 The Committee

the committee considered that the “continuing promotion by search engines of illegal content on the internet is unacceptable” and that “so far, their attempts to remedy this have been derisorily ineffective.”19 the committee calls for greater pressure to be put on search engines to demote search results and remove infringing content. the committee also recommends that the intellectual Property office (“iPo”) should provide an assessment of the degree of online copyright infringement and the extent to which search engines facilitate this in its annual report; transparency on the issue must come not only from search engines themselves.

3.4 Consumers

there is evidence that consumers would like search engines to take a more active role in preventing piracy and that they look to search engines to guide them towards legal content (such as the Prs “traffic light” system referred to in paragraph 4.5.2 below). research has shown that more than two thirds (68%) of respondents to a harris 2011 study agreed that search engines should make it harder to find websites that offer music illegally, with 63% of those using illegal content concurring.20 Additionally, 84% of respondents to research conducted by iPsos Mori believed that search engines should direct them to legal rather than illegal sites21.

16 twentieth century Fox Film corp and others v british telecommunications plc [2011] eWhc 1981 ch17 dramatico entertainment ltd and others v british sky broadcasting ltd and others [2012] eWhc 268 ch18 case number c-314/12 uPc telekabel Wien Gmbh v constantin Film verleih Gmbh and Wega Filmproduktionsgesellschaft mbh Judgement of 27 March 2014.19 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf 20 bPi, 2013. “digital Music nation 2013”. Available at https://www.bpi.co.uk/assets/files/bPi_digital_Music_nation_2013.PdF 21 Greve, P (prepared for McAfee), 2010. “digital Music and Movies report –the true cost of entertainment”. Available at http://www.org.id.tue.nl/ifip-tc14/documents/dMMrreport-2010.pdf

A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister8

3.5 Google and search engines

3.5.1Google published a report entitled “how Google Fights Piracy” in september 201322, in which it responded to claims that it does not do enough to combat piracy and questioned the extent of search as a factor in contributing to piracy.

3.5.2in discussions with me, Google has suggested the following five steps to help uk content owners increase the visibility of authorised services in search results, a copy of which can be found at Appendix 2:

3.5.2.1Joint industry event: Google has suggested an annual event to allow content creators and Google search experts to share best practice and provide advice on how to make content discoverable. Recommendation 2: The opportunity for rights holders to discuss with Google how to maximise the prioritisation of sites with legitimate content would be welcome. I also believe that the publicity that such an event might garner could provide a positive contribution to the educational goal described earlier in this paper.

3.5.2.2Mark-up in organic search: Google has introduced a new open standard for the mark-up of websites to enable authorised music sites to more prominently feature streaming “preview” music content in search results. such an initiative could help profile legal content, so long as adequate measures were put in place to ensure that music content cannot be previewed from illegitimate sites.

3.5.2.3Action ads: Google are offering advertisers the opportunity to add links to download or stream from legitimate content sites. As described above at paragraph 3.5.2.2, this feature could help profile legal content, but Google must take appropriate steps to ensure that such advertising space is not purchased by pirate sites.

3.5.2.4Album/film specific signposting sites: Google suggests that the film and music industry design content-specific pages to direct consumers to legitimate content, for example a specific page on “Where to Watch Modern Family online”. the bFi-backed industry trust site findanyfilm.com provides a comprehensive site for consumers to learn where films can be viewed. As i understand it, Google is seeking for the architecture of the site to be made more “transparent” to its search engines for circumstances where a particular film (or other content item) is sought online.

3.5.2.5Crawlable licensed services: Google requests that movie or music streaming services that are provided to paying customers through mobile applications, tablets,

22 Google, 2013. “how Google Fights Piracy”. Available at https://docs.google.com/file/d/0bwxyrPFdutn2dvFqyml5uenueue/edit?pli=1

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phones or otherwise behind a paywall become crawlable by Google so that it can return more relevant results to direct consumers to these services. Google maintains that it is perfectly possible to create crawlable pages for each movie or album title in a security-friendly way. i am told by rights holders that there are potential security issues around making licensed services crawlable and they have concerns with this proposal. i am not suitably qualified to comment on this and invite those that are to comment accordingly.

3.5.3Recommendation 3: It is an encouraging sign that Google is engaging with the issue of piracy in an open and collaborative manner. However, it should be noted that industry response to the initiatives described above and particularly the final two proposals, has not been fully favourable. The objections do seem to me to be more a matter for commercial discussion than to really go to the heart of the challenge of piracy which I address in this paper. I do however recommend that this initiative is explored further between licensed services, rights holders and Google, in conjunction with the other proposals set out in this paper.

A PAPer by Mike WeAtherley MP, intellectuAl ProPerty Adviser to the PriMe Minister10

4Initiatives to combat piracy

4.1 Promotion/demotion of search results

4.1.1search engines are operated by human operators and algorithms, which rank search results in relation to relevance for the consumer. Google already acts swiftly to remove illegal content in other controversial areas of public concern, demonstrating a clear technical capability to remove illegal search results efficiently and quickly23. i do not accept the argument that a mixture of legal and illegal content on a site should preclude that site from being delisted. in my view, illegality cannot be condoned by incorporating an element of legal services.

4.1.2in support of my assertion that piracy would occur without Google, i would offer this case study. in January 2014, a band known to me issued a new album digitally through Apple and other download services. Within one hour the music was available on torrent sites (principally based in russia) and was being downloaded at what seemed to be a rate of 20 illegal downloads to one legal download. At this point, the album release was not listed on Google whatsoever. Google was not directing anyone to any illegal site, but illegal downloads were occurring. the next day the search results were found on Google listings and illegal downloading had increased (doubling on day three). Whilst some illegal activity may be occurring as a result of search listing, the fact remained that consumers experienced in downloading illegal content had by-passed the Google step and were directly accessing pirate sites. Whilst this is only anecdotal evidence, it makes the point that whilst search engines do not cause piracy, they have some secondary role in its facilitation. Google asserts that it is not a major driver of traffic to pirate sites and traffic from the major search engines (yahoo, bing, Google) accounts for just 13% of traffic to unlicensed music sites24. however, other research, such as that by the MPAA, has shown that 65% of “pirates” regularly25 use search engines to identify unlicensed content26. the extent to which search engines direct such traffic remains unclear in the varying bodies of research but it is unarguable that some ‘direction’ happens and as the committee has noted, such quibbles “should not detract from the existential threat that online piracy clearly poses to the creative economy”27.

4.1.3the majority of rights holders (although not all ‘stakeholders’ which would include isPs for example) share the view that search engines should promote and demote content in search results based on the legality of that content. over half (60%) of internet users worldwide believe that search engines should

23 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf24 Google, 2013. “how Google Fights Piracy”. Available at https://docs.google.com/file/d/0bwxyrPFdutn2dvFqyml5uenueue/edit?pli=125 in this survey, “regularly” was defined as at least every few months.26 “digital entertainment survey 2013”. Available at http://www.des2013.co.uk/pdf/digital_entertainment_survey_2013.pdf27 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf

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prioritise licensed film, tv, music and other legitimate rights holders / brand owners and services in their search results.28 the committee has described the “continuing promotion by search engines of illegal content on the internet” as “unacceptable”29.

4.1.4Whilst it is true that the promotion/demotion of search results does not remove consumer’s access to illegal content altogether, it significantly narrows the channels available to access such content and sends a clear message that it is unacceptable to engage in piracy. Given that 74% of consumers cited using a search engine to navigate them to a site (albeit occasionally including the name of the direct link) with infringing content the first time they visited that site30 and studies have shown that approximately 94% of users do not go beyond the first page of results31, the importance of the prioritisation of search results should not be underestimated.

4.1.5Given the general level of support for this initiative, it seems to me that the question to be asked is not whether search engines should promote/demote their search results, but how this can be implemented and enforced so as to ensure a meaningful effect. Google agreed to change its algorithm in August 2012 to demote sites in search index with high volumes of infringing content.32 the recording industry claims it has seen “no demonstrable demotion” of pirate sites since Google’s algorithm change33 and the number of take down notices (which is determined by rights holders) in its Google transparency report remained flat in the three months following the change34. studies have shown that since the algorithm change, sites for which Google has received thousands of copyright removal requests are almost eight times more likely to show up in a search result than an authorised music download site35.

4.1.6in discussions with me, the bPi has suggested that where Google has received a number of notices of illegal content under the dMcA and other equivalent eu directives, indicating industrial copyright infringement, the index could be demoted from pages of Google’s search results depending on the number of notices received in the following way:

• Where a search engine has received 10,000 notices of infringement from rights owners in respect of a particular site, that site should not appear on the front page of any search (or in the top 10 results), regardless of the search terms used, unless and until that site obtains certification.

• Where a search engine has received 100,000 notices of infringement from rights owners in respect of a particular site, that site should not appear in the first ten pages of search results (or the top 100).

28 iFPi, 2014. “After 100 million piracy notices, it’s time for Google to take meaningful action to help curb online copyright infringement.” Available at http://www.ifpi.org/content/library/iFPi_blog_Google_Jan2014.pdf29 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf30 MPA, 2013. “new study finds search engines play a critical role in introducing audiences to illegitimate film and television content online.” Available at http://www.mpaa.org/wp-content/uploads/2013/11/MPAAnewstudysearchengines.pdf 31 riAA, 2013. “six Months later – A report card on Google’s demotion of Pirate sites”. Available at http://76.74.24.142/3cF95e01-3836-e6cd-A470-1c2b89de9723.pdf32 Google, 2012. “An update to our search algorithms”. Available at http://insidesearch.blogspot.co.uk/2012/08/an-update-to-our-search-algorithms.html33 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf34 Millward brown digital (prepared for MPAA), 2013. “understanding the role of search in online Piracy”. Available at http://www.mpaa.org/wp-content/uploads/2014/03/understanding-the-role-of-search-in-online-piracy.pdf 35 riAA, 2013. “six Months later – A report card on Google’s demotion of Pirate sites”. Available at http://76.74.24.142/3cF95e01-3836-e6cd-A470-1c2b89de9723.pdf

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4.1.7the bPi has also suggested that legal sites are promoted in search results by incorporating recognised objective content certification schemes such as the bPi’s “Music Matters” scheme into Google’s algorithm as described further in paragraph 4.5.1.

4.1.8the suggestions described in paragraph 4.1.6 are reasonable, capable of objective verification and make search engines more accountable. the levels relate only to extreme pirate sites where there is widespread copyright infringement, alleviating the concerns of search engines that notices of infringement can be subject to abuse36. Furthermore, these levels can be periodically reviewed which is appropriate given the dynamic nature of the digital content industry and internet. it is acknowledged that the use of levels based on the volume of notices may point to sites with a mix of legal and illegal content such as youtube, due to their scale. Whilst piracy potentially remains a problem on these sites (Google has a system called ‘content id’ which assists rights holders to identify user-uploaded videos and what they want to happen with those videos), it is those pirate sites dedicated to providing illegal content that must be targeted in the first instance. Possible solutions to this problem could involve an initial whitelisting of sites such as youtube, Facebook and twitter and/or a condition that any site to be demoted in search results must be a site that substantially infringes or is structured to infringe iP. it may well be that the new Police intellectual Property crime unit (“PiPcu”) blacklist (discussed in paragraph 4.5.2 below) forms a suitable basis of identifying which sites to demote or block. Recommendation 4a: I am convinced that a solution along these lines should be implemented and I urge Google to take steps promptly to engage with rights holders to discuss what is practical and reasonable.

4.1.9the evidence points to the fact that search is a driver of piracy, sufficient to warrant concern, and appropriate steps must be taken by search engines in recognition of this fact. Google must also facilitate the reporting of such links; there is currently a cap in place restricting the number of infringing links that may be reported37 (although Google has confirmed that it frequently raised the cap when requested) and the bPi has indicated to me in discussions that there are significant technical and operational constraints that prevent efficient and cost-effective reporting. Recommendation 4b: If the solution described above is implemented, I would hope that this will reduce the need for repeat notices, but I would urge Google to take steps to reduce or eliminate such constraints.

4.2 Site blocking

4.2.1site blocking has proved itself to be a powerful and effective method of preventing piracy, as evidenced by the actions against newzbin238 and the Pirate bay39. the bPi has reported a 70% reduction in traffic to 25 sites blocked by a court order. in european countries where blocking orders are in place, bittorrent use declined by 11%, whereas european countries without blocking orders

36 Google, 2013. “how Google Fights Piracy”. Available at https://docs.google.com/file/d/0bwxyrPFdutn2dvFqyml5uenueue/edit?pli=137 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf38 twentieth century Fox Film corp and others v british telecommunications plc [2011] eWhc 1981 ch 39 dramatico entertainment ltd and others v british sky broadcasting ltd and others [2012] eWhc 268 ch

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saw such use increase by 15%.40 courts in 10 eu countries have ordered isPs to block access to specific sites and have “consistently found that the blocking of sites providing illegal content achieves an appropriate balance of rights.”41 indeed, the court of Justice of the european union has made it clear that website blocking is available under eu law.42 there is also strong support for site blocking from consumers; over half (56%) of respondents to a 2012 Audiencenet survey43

agreed that sites which distribute music illegally without paying artists should be blocked or closed down and 42% of filesharers agreed that the blocking of a site would stop them acquiring infringing content. the committee has also suggested that search engines should block infringing content44.

4.2.2in discussions with me, the bPi has requested that where sites are found to be illegal by a court in the eu for copyright infringement and the court has ruled that it is appropriate to block access to that site, once a copy of such legal judgment has been served on a search engine, that search engine should no longer provide listings to the site for uk consumers. Recommendation 5a: To me, this seems to be the correct approach, since a proper judicial process has concluded that UK consumers should not be able to reach those sites and their continued exposure on the search engines only encourages their continued availability.

4.2.3notorious pirate sites mp3skull.com and mp3juices.com which derive 45% and 43.5% of traffic from search engines respectively (as shown by Alexa statistics on 21 February 2014)45 are subject to a high court order which has found them to be illegal and requires major isPs in the uk to block them. however, both sites are still active and prominent in search results. in discussions, Google has commented that court orders to remove listings to such sites must be made against Google itself in order for a proper legal process to be followed. Recommendation 5b: I consider that search engines should agree with rights holders a protocol whereby, once they receive a copy of a formal court order blocking a site from access via the main UK ISPs, they should take steps to remove that site from their own search algorithms with the same speed as the violation of their own SEO rules.

4.3 Advertising

4.3.1search engines are involved in many aspects of the online advertising value chain; advertising accounted for 95% of Google’s revenue in 201246. Google has submitted that it proactively monitors its Adsense, doubleclick and AdWords programmes to ensure that pirate sites do not use these services. however, in discussions between rights holders, they have relayed to me concerns (although not substantiated by specific examples) that a number of notorious piracy sites including filestube.com, 1channel.ch and isohunt.com regularly display adverts utilising one or more of Google’s advertising services including doubleclick, invite Media and Google display network. if this does indeed happen, then a search engine would not only profit from illegal activity but provides pirates with the means to target their consumers. As Google is in a contractual relationship with

40 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf41 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf42 see the case cited at footnote 16 above.43 bPi, 2013. “digital Music nation 2013”. Available at https://www.bpi.co.uk/assets/files/bPi_digital_Music_nation_2013.PdF44 Wiggin llP, 2013. “digital entertainment survey 2013”. Available at http://www.des2013.co.uk/pdf/digital_entertainment_survey_2013.pdf45 http://www.alexa.com/ 46 http://investor.google.com/financial/2012/tables.html

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such sites, it has an enhanced responsibility to ensure that the sites it supplies advertising services to are legal. it is acknowledged that there is a difficulty for Google in using some programmes such as doubleclick, where its role is limited to the provision of a software tool and it lacks control over what is being sold. however, it is crucial that Google co-operates with rights holders and law enforcement agencies to prevent the funding of criminal enterprise. in discussions with me, Google has strongly refuted any claim that this happens and stated that its policy prohibits advertising on pages with infringing content. Google commented that it enforces this policy strongly and noted that it has disabled thousands of accounts for copyright violations. this is indeed warmly welcomed and, given such a robust positive response, Google should have no issue with the recommendation made in paragraph 4.3.2 below.

4.3.2Most pirate sites make revenue through advertising rather than the sale of illegal content itself47 so it therefore follows that if pirate sites are prevented from advertising, they will struggle to exist. Google itself acknowledges that “the most effective way to combat rogue sites that specialize in online piracy is to cut off their money supply”48 and is supportive of the efforts of the digital trading standards Group, which has published good practice guidelines to minimise the risk of misplaced advertising49. the “Follow the Money” concept has formed a central part of my fight against piracy50 and a further paper on this initiative will follow. the concept has wide industry support from rights holders, PiPcu and Google. PiPcu, which is funded by the iPo, estimates that this initiative could close 95% of pirate sites51. PiPcu has recently launched an infringing website list as part of “operation creative”, to identify the urls of piracy sites and persuade brands, media agencies and advertising networks to ensure that they are not advertising on such sites. the urls will initially be provided by the creative industries for verification by PiPcu. the scheme “is an excellent example of what can be achieved through industry, Government and law enforcement working together52,” and provides a collaborative model for other initiatives discussed in this paper. Recommendation 6: I urge Google to support this initiative and to take the lead in reducing the supply of their advertising products to pirates.

4.4 Autocomplete

4.4.1Autocomplete offers real-time search term suggestions to consumers, which navigates consumers to infringing content by, on occasions, suggesting terms closely interrelated with pirate sites. Google took action on Autocomplete in december 2010, promising not to display terms most frequently used for searching for infringing content53. Google’s policy on Autocomplete is as follows: “we’ll accept terms, if rights holders are concerned these terms are closely associated with piracy. We’ve accepted them, we’ve actually accepted almost every term, almost all the terms we’ve received.”54

47 Music Week, 2012. “Music and tech industries must stop self-interested propaganda”. Available at http://www.musicweek.com/news/read/music-and-tech-industries-must-stop-self-interested-propaganda/04841348 Google, 2013. “how Google Fights Piracy”. Available at https://docs.google.com/file/d/0bwxyrPFdutn2dvFqyml5uenueue/edit?pli=149 dtsG, 2013. “uk Good Practice Principles for the trading of digital display Advertising”. Available at http://www.jicwebs.org/images/dtsG%20Good%20Practice%20Principles%20dec%202013.pdf50 Mike Weatherley MP, 2014. “We should Follow the Money to strangle websites that rip off others’ intellectual Property”. Available at http://www.conservativehome.com/platform/2014/04/mike-weatherley-mp-we-should-follow-the-money-to-strangle-websites-that-rip-off-others-intellectual-property.html51 Mike Weatherley MP, 2014. “We should Follow the Money to strangle websites that rip off others’ intellectual Property”. Available at http://www.conservativehome.com/platform/2014/04/mike-weatherley-mp-we-should-follow-the-money-to-strangle-websites-that-rip-off-others-intellectual-property.html52 http://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic-crime/pipcu/pipcu-news/Pages/city-of-london-Police-call-for-help-tackle-cyber-crime.aspx53 Google, 2010. “Making copyright work better online”. Available at http://googlepublicpolicy.blogspot.co.uk/2010/12/making-copyright-work-better-online.html 54 digital Music news, 2014. “congress tells Google: clean up your search results, or we will…”. Available at http://www.digitalmusicnews.com/permalink/2014/04/15/congresstellsgoogle

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4.4.2however, there continues to be concerns that Autocomplete is a driver of piracy. in 2012, the French supreme court found that Google should eliminate terms associated with piracy from its Autocomplete function55. in a recent survey conducted by the MPAA, in 88% of searches for mp3s and downloads of popular tracks, Autocomplete suggested appending certain terms which are associated with sites for which it has received multiple notices of infringement including “skull” which is associated with mp3skull.com56. i have not conducted a review of how widespread this practice is and, of course, care must be taken with terms such as ‘skull’ which have legitimate applications as well. i did enter ‘mp3sk’, and this autocompleted the illegal site, but upon ‘clicking’ the link, i am very pleased to report that the message ‘site blocked’ came up – although access may have been possible via a method not included in a court order.

4.4.3Whilst Google has advanced that Autocomplete is simply an objective mirror of likely search queries from consumers57, the algorithm that produces Autocomplete is ultimately created by Google and the obligation must lie with Google (and other search engines) to make the function available responsibly. Given that Google has accepted that Autocomplete for pirate sites should not occur, it seems uncontroversial to recommend that steps are taken to continue to ensure this does not happen. Recommendation 7: I recommend that Google enters into open discussions with stakeholders to formulate a formal reporting and take-down system for illegitimate Autocomplete terms, the results of which should be included in Google’s Transparency Report. Equally, rights holders should recognise positive steps when taken by search engines.

4.5 Trust marks and warnings

4.5.1there has been wide industry support for trust marks and warnings of infringement to be displayed with search results to direct consumers to legal content. the bPi launched Music Matters in 2010 to inform consumers about the legitimacy of music content and is a campaign supported by the entire music industry. Music Matters has developed a trust mark to help consumers distinguish legal services from pirate services. Music Matters certifies sites based on objective criteria and most major retailers are involved in the scheme. the metadata is machine readable so trust marks could be used in the promotion/demotion of search results as described in paragraph 4.1 above. other “trust” lists are also developed by other organisations. it is important that any “trust” list must be independent and not restrictive to one user group – a “trust” list must not skew results for commercial advantage.

4.5.2in discussions with me, rights holders have also suggested that search engines should include warnings to consumers where search results will lead to infringing content. Google has not only proven in relation to malware on certain torrent sites that it has the technical capability within its

55 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf56 Millward brown digital (prepared for MPAA), 2013. “understanding the role of search in online Piracy”. Available at http://www.mpaa.org/wp-content/uploads/2014/03/understanding-the-role-of-search-in-online-piracy.pdf 57 https://support.google.com/websearch/answer/106230?hl=en

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systems to deliver consumer messaging in search listings, but that such messages can be an effective deterrent to consumers58. those searching for the torrent site demonoid are warned in search listings that the site may harm the consumer’s computer and those that choose to ignore the warning are diverted to a warning page created by Google. if Google continue this approach in respect of malware, a number of pirate sites may attract such warnings given that 97% of the top 30 pirate sites contain malware or similar programmes59. however, rights holders have suggested to me that a similar system could also be employed in respect of copyright infringement by using PiPcu’s blacklist of sites. similarly, Prs has suggested a ‘traffic light’ system to give consumers guidance as to legitimate sites. it should also be noted, however, that arguments have been put forward that if the site is identified as a potential threat, then perhaps it should not be present at all. in effect, on the so called “traffic light system”, any “red” site should simply not be listed. i am aware that various proposal papers are due to be published shortly on this subject and i have therefore not gone into detail of these schemes here.

4.5.3research conducted for ofcom has shown that 44% of consumers aged 12 and above lack confidence in identifying legal content online60 and the evolving digital world only intensifies this challenge. in principle, trust marks and warnings improve confidence online, reduce the likelihood of inadvertent infringement and make it easier to find legal sites on search engines. currently, the most commonly cited indicator of legality is reputability/brand61, but this can be misleading where well-known sites such as youtube have both legal and illegal content. it is accepted that the same difficulties in respect of such sites will apply to both trust marks and warnings, but this should not detract from the positive impact that these measures can have. Recommendation 8: I would urge search engines to explore means of incorporating trust marks and warnings both into its algorithms and into the search results presented to consumers and to support the education of consumers in the value of trust marks in signalling legitimate content.

58 torrent Freak, 2014. “Google blocks demonoid for spreading malicious software”. Available at http://torrentfreak.com/google-blocks-demonoid-for-spreading-malicious-software-140508/59 the industry trust, 2014. “the bogus features lurking behind pirate film and tv sites”. Available at http://www.industrytrust.co.uk/press-releases/the-bogus-features-lurking-behind-pirate-film-and-tv-sites/60 kantar Media (prepared for ofcom), 2012. “oci tracker benchmark study Q3 2012”. Available at http://stakeholders.ofcom.org.uk/binaries/research/telecoms-research/online-copyright/kantar-Media.pdf61 kantar Media (prepared for ofcom), 2012. “oci tracker benchmark study Q3 2012”. Available at http://stakeholders.ofcom.org.uk/binaries/research/telecoms-research/online-copyright/kantar-Media.pdf

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5Methods of enforcement

5.1the committee “encourage[s] businesses to use the current law to bring claims wherever it is feasible for them to do so”, but notes that “there nonetheless remains a systemic failure to enforce the existing laws effectively against rife online piracy”62. the committee is encouraged by progress made towards instituting a voluntary system of warning letters and feels that if this can be achieved by mutual cooperation rather than legislation, it would be a major step forward. Private agreements and codes of conduct offer flexibility and avoid the difficulties associated with legislation exemplified by the continuing delay in implementing the deA.

5.2rights holders such as the bPi and MPAA also support a voluntary code of conduct in the first instance to achieve their aims outside of legislation. indeed, the bPi and MPAA are negotiating an agreement with isPs in respect of the voluntary copyright Alert Programme (“vcAP”), which works as a voluntary alternative to certain provisions of the deA such as sending out educational warnings to infringers63. With the continued delay in implementing the deA, rights holders and the committee support the idea of putting vcAP measures to reduce piracy in place. initiatives such as this (which involves sending out educational warnings to those infringing copyright), have the advantage of flexibility over legislation and may remove the need for further legislation if proved to be effective. however, vcAP remains an “after the fact” warning system and the preference must be to direct users to legal sites before they infringe. vcAP is a positive initiative, but it is only a small step in the right direction; further opportunities for collaboration exist. however, both the committee64 and rights holders recognise the possibility that private agreements and codes of conduct may not be robust enough to have a significant impact on piracy and suggest that the Government ensures equivalent measures in the deA are put in place if necessary. Recommendation 9: I would like to see the VCAP scheme implemented and for it to become a successful contribution to the fight against piracy, but I believe that we should retain the DEA measures as a fall-back if VCAP cannot be implemented in a timely manner or if it is shown to be ineffective.

5.3“Follow the Money”. As described in paragraph 4.3.2 above, results from a pilot study conducted in 2013 saw 12% less advertising from major household brands on pirate sites, providing encouraging evidence that a “Follow the Money” initiative could be an effective and efficient method of enforcement65. i will be producing a paper on this shortly and it is the subject of a session in the forthcoming iPo iP enforcement conference in June 2014. Additionally, the city of london Police has recently established PiPcu who are looking at ways to cut off revenue streams

62 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf63 bbc, 2014. “deal to combat piracy in uk with “alerts” is imminent.” Available at http://www.bbc.co.uk/news/technology-2733015064 culture, Media and sport committee, 2013. “supporting the creative economy”. Available at http://www.publications.parliament.uk/pa/cm201314/cmselect/cmcumeds/674/674.pdf65 http://www.cityoflondon.police.uk/advice-and-support/fraud-and-economic-crime/pipcu/pipcu-news/Pages/city-of-london-Police-call-for-help-tackle-cyber-crime.aspx

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generated through illegal activity and is expanding its activities to work with search engines. As a side point, PiPcu is quickly establishing itself as a central force in the fight against piracy and i have recommended to the Prime Minister that future funding should be committed to fighting iP crime and the efforts of PiPcu, as set out at Appendix 1. “Whitebullet” is also scoring websites by reference to their degree of iP infringement. the forthcoming “Follow the Money” paper is a collaborative effort between myself, the iPo, PiPcu and Whitebullet.

5.4this paper is not intended to include a full discussion on enforcement options in relation to piracy. As a general rule however, i would advocate that after the implementation of “education”, (since voluntary compliance is always preferable), suitable legal alternatives (the “carrot”) and “Follow the Money”, we should not shy away from looking at penalties for persistent offenders as with any “off line” physical theft.

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6Recommendations

6.1Recommendation 1: Search engines should adopt the suggestions set out in this paper but Google in particular must take the lead in setting responsible industry standards as the largest provider of search in the UK (please see paragraph 2.6)

6.2Recommendation 2: The opportunity for rights holders to discuss with Google how to maximise the prioritisation of sites with legitimate content would be welcome. I also believe that the publicity that such an event might garner could provide a positive contribution to the educational goal described earlier in this paper. (please see paragraph 3.5.2.1)

6.3Recommendation 3: The proposed initiative by Google regarding ‘crawlable licensed services’ is explored further between licensed services, rights holders and Google, in conjunction with the other proposals set out in this paper. (please see paragraph 3.5.3)

6.4Recommendation 4 (a) and (b) An effective means of promoting/demoting search results on the basis of legality should be implemented, for example demotion based on the volume of copyright notices and PIPCU blacklist; Google and others should take steps to engage with rights holders to design a workable system. This recommendation could be quickly acted upon and a good signpost of intent (please see paragraph 4.1.8 and 4.1.9)

6.5*Key Recommendation* Recommendation 5 (a) and (b) search engines should agree a protocol with rights holders whereby once they receive a copy of a formal court order blocking a site from access via the main UK ISPs, they must take steps to remove that site from their search algorithms promptly. This may require government assistance by amending legislation to include court orders extending to more situations than ISPs only. (please see paragraph 4.2.2 and 4.2.3)

6.6*Key Recommendation* Recommendation 6: Search engines should fully support the “Follow the Money” initiative and take the lead in reducing the supply of advertising funds to pirates. Given Google state that this would be a breach of their policy to not do this, then this recommendation is not controversial and all are agreed that no revenues should find their way into the hands of those operating sites with illegal activity / downloads. (please see paragraph 4.3.2)

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6.7Recommendation 7: search engines should enter into open discussions with rights holders to formulate a formal reporting and take-down system for illegitimate Autocomplete terms, the results of which should be included in Google’s Transparency Report. (please see paragraph 4.4.3)

6.8Recommendation 8: search engines should explore the means of incorporating trust marks and warnings to signify legal content both into its algorithms and into the search results presented to consumers. (please see paragraph 4.5.3)

6.9Recommendation 9: Everyone should support the VCAP scheme and explore alternative private agreements/codes of conduct to prevent piracy outside of legislation. With the continued delay in implementing the deA, rights holders and the committee support the idea of putting voluntary measures to reduce piracy in place. initiatives such as the bPi’s vcAP have the advantage of flexibility over legislation and may remove the need for further legislation if proved to be effective. (please see paragraph 5.2)

6.10Recommendation 10: The initiatives suggested by Google as set out in further detail in Appendix 2 should be explored further between licensed services, rights holders and Google, but only in conjunction with the other recommendations set out in this paper. (Appendix 2)

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7Conclusion

7.1it should be noted that ultimately search engines are not the cause of piracy, but can on occasions be a tool which inadvertently facilitates its continued operation; the real targets – and the main thrust of activities against illegal activity - remain those providing infringing material and those infringing copyright on a mass scale. nonetheless, as noted by iFPi, “all parties in the digital economy have a responsibility to support legitimate digital commerce and help tackle piracy”66 and search engines must take their part in this seriously. the Music Managers’ Forum suggests that “technology is no longer seen as the evil force that might destroy the music industry. indeed, there are now many successful partnerships delivering growth for both sectors, and satisfying consumers’ needs67”. search engines are part of the solution to piracy and their active engagement with its challenges is fundamental to shaping the evolving digital market in an innovative and responsible way. Google (and others) have fully collaborated in providing submissions when compiling this paper and i am sure Google will adopt the same approach in discussions with rights holders to drive the recommendations in this paper forward, providing rights holders come to the table with the same collaborative attitude.

7.2Most of the initiatives that rights holders have campaigned for search engines to implement form part of Google’s policies already. the challenge that remains is how to ensure these policies are meaningfully implemented in practice to ensure anti-piracy initiatives are efficient, practical and effective. voluntary mechanisms allow for flexibility in an area of rapid technological change and encourage a preventative rather than remedial approach to piracy. through continued collaboration with other stakeholders, search engines can – and must – use the resources available to them in order to safeguard the uk’s creative industries. Piracy remains the biggest threat to the growth of digital commerce; if we want the uk to continue to be a leader in creativity and innovation, the uk must also be an international leader of iP rights protection.

7.3My thanks to all those who have been proactive in compiling this report – Google, yahoo, Microsoft, bPi, Prs, olswang, PiPcu, iPo, MPAA and many others commenting informally.

Mike Weatherley MP, intellectual Property Adviser to the Prime Minister, 29th May 2014I am grateful for the support of John Enser and Katherine Teasdale of Olswang LLP in the preparation of this paper.

66 iFPi, 2014. “iFPi digital Music report”. Available at http://www.ifpi.org/downloads/digital-Music-report-2014.pdf67 Music Week, 2012. “Music and tech industries must stop self-interested propaganda”. Available at http://www.musicweek.com/news/read/music-and-tech-industries-must-stop-self-interested-propaganda/048413

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8Appendix 1 - Mike Weatherley letter to Prime minister re PIPCU

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8Appendix 2 - Google submission on search engines and piracy

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Note for Mike Weatherley MP: Intellectual Property Adviser to the UK Prime Minister Making legitimate alternatives more visible in Google Search Five steps to help UK content owners increase the visibility of authorized services in search results. 1. New annual joint­industry event chaired by the PM’s IP Adviser to help UK creators We would be happy to commit to host and lead with you an annual event to bring together creators from the film and music industry with Google search experts to share best practice, focus on new innovations, and provide first­hand practical advice for creators to make their content as discoverable as possible. We would be delighted for you to work with you and the film and music industry to make it as innovative and effective as possible. The content for the day could focus on some of the existing proposals below as well as discussing other new innovations in this area ­ for example, what will the future of search look like on Google Glass and what would it mean for creators? 2. Markup in organic search We’ve introduced a new open standard for the markup of websites which enables authorized music sites to more prominently feature streaming “preview” music content in our search results (“rich snippets”). With this standard, anyone searching for popular music can immediately stream authorized previews right in the search results. A number of music sites (including Amazon and Last.FM) have implemented the new standard, distinguishing their offerings from results from unauthorized sites but many still have not or are unaware of its potential to make legitimate content truly stand out in search.

3. Introduce new ‘action ads’ in knowledge graph Google Search is evolving away from ten blue links. Whenever you search for a well known person, place or thing ­ like a film or album ­ Google’s results now no longer just display ten blue links but what we call the ‘Knowledge Graph’ on the right­hand side.

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For example, when you search for “Amy Winehouse” you now get a large box to the right­hand side, with biographical information and a summarised discography:

As part of the next stage of this evolution, we are offering advertisers the opportunity to place calls to action within the ‘knowledge panel’. So, for example, if you search for the movie ‘Lost in Translation’ in the US you not only get the Knowledge Panel on the right­hand side, with scores from IMDB, a plot summary, and short cast list, you also get a link to ‘Watch now’. This link includes ads from Google Play, Hulu Plus, and Amazon (among others) encouraging you towards legitimate content sites to download or stream licensed music:

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4. Use album/film specific signposting sites The film and television industry has launched wheretowatch.org, and the BPI has launched whymusicmatters.com to help consumers find legitimate channels for buying films, TV shows, and songs. The Music Business Association has also recently offered advice to online music retailers on optimizing their sites for better performance in search engine results. However while 1

these search pages offer general signposting, most individuals search for specific content (such as a movie or album) when they are looking for content. Because of the way search engines work, we would encourage the film and music industry to design content­specific pages (for example, a specific page on “Where to Watch Modern Family online”). 5. Make licensed services crawlable Many of today’s most­used legitimate movie or music streaming services are provided to paying customers through a mobile application on tablets or phones, or are behind a paywall. For a search engine to return results from licensed services like Spotify or Netflix, we must know what songs and programs are available from those services. With more information, search engines could return better, more relevant results to users seeking the content which would direct users to those services. Google looks forward to continuing collaborative efforts with content owners and authorized service to make their offerings more visible in search results.

1 http://musicbiz.org/past­releases/infographic­search­engine­optimization­for­music­websites/