Lawmakers question if search engines contribute to piracy

Search engines should stop showing results for websites that infringe copyright and sell counterfeit products, or be held accountable, some U.S. lawmakers and witnesses said Wednesday during a hearing on digital piracy.

"There are a number of ... search engines that act as intermediaries and facilitate what all this lecturing is about, piracy and stealing," Representative John Conyers Jr., said during a subcommittee hearing. "What responsibilities do they have? Are we all the innocents, and all the bad guys are overseas?"

Conyers, a Michigan Democrat, and other members of the U.S. House of Representatives Judiciary Committee's Internet subcommittee said they will work on legislation this year to attack so-called "parasite" websites that offer free, unauthorized copies of digital songs and movies or sell counterfeit shoes, handbags and other products. But lawmakers heard conflicting proposals on how to shut down the piracy and counterfeit sites, with some witnesses at Wednesday's hearing suggesting that it's difficult to prosecute owners of overseas websites.

Conyers and Representative Ben Quayle, an Arizona Republican, questioned why Google and other search engines can't filter search results and block customer links to infringing sites.

Even if websites are overseas, "that doesn't mean we can't disable the search to those," added Christine Jones, executive vice president and general counsel for Go Daddy Group, a large domain name registrar.

Google does bury the search results of sites that sell pirated or counterfeit products after complaints from copyright holders, said Kent Walker, senior vice president and general counsel at Google. In the last half of 2010, Google also shut down about 50,000 accounts for attempting to use sponsored links to advertise counterfeit goods, he noted.

But it's difficult to filter Web searches ahead of time because searches for legal sites are often similar to searches for piracy or counterfeit sites, and Google doesn't want to be in the position of deciding what sites should be excluded from search results, Walker added.

"It's a whack-a-mole problem, as we constantly work to improve our practices against sophisticated entities trying to game our protections," Walker said. "It is incredibly difficult for Google to identify a counterfeit product being advertised. Online advertising companies, which do not take possession of the good, cannot know for sure whether any particular item out of millions advertised is indeed a counterfeit."

Even if search engines bury piracy sites, online word-of-mouth can cause the sites to rise again in the results, Walker said. Instead of focusing on search results, prosecutors and lawmakers should focus on the advertising and financial transactions that pay for piracy and counterfeit sites, he added.

Some subcommittee members praised U.S. Immigrations and Customs Enforcement (ICE) for, in the past year, seizing 119 websites accused of dealing in pirated goods. But others questioned the practice and a 2010 Senate bill, the Combating Online Infringement and Counterfeits Act (COICA), which would have given ICE and the U.S. Department of Justice new authority to force domain name registrars to shut down websites that allegedly infringe copyright.

Civil liberties groups and other critics of the domain name seizures have said the tactic doesn't give website owners a chance to respond to ICE and DOJ allegations that their sites infringe copyright. In some cases, the seizures have shut down websites that link to legal content or that contain significant original content, including blogs and message boards, critics have said.

ICE and the DOJ have to be careful to only shut down sites that primarily focus on piracy, said Floyd Abrams, a lawyer focused on free speech issues. But Abrams defended COICA and the domain-name seizures, saying that if the agencies get a court order determining the sites infringe copyright, the seizures wouldn't violate the First Amendment of the U.S. Constitution.

"We're often talking about taking down an infringing movie, an infringing design, when the real problem is very often that these sites are only infringing sites -- everything on them is infringing," Abrams said.

But Representative Mel Watt, a North Carolina Democrat, questioned if piracy sites could argue they are protected by the First Amendment by including some original content. "If you're telling [criminals] that all you're doing is taking down sites that are exclusively dedicated to criminal activity, he's going to mix in a little legitimate stuff, don't you think?" he said.

Go Daddy's Jones said her company shuts down all sites found to infringe after complaints from copyright owners, even if there also is legitimate content on those sites. "If there is some infringing content, and the person that owns the website doesn't cure it, we disable the entire website," she said. "You either are engaged in unlawful activity, or you're not. There's no such thing as halfway."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.