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Google Executive, Hollywood Producer Spar Over Piracy at Copyright Hearing

The House Judiciary Committee took its ongoing copyright review to Los Angeles this week, and even though entertainment figures dominated the conversation, there was a moment that underscored the ongoing friction between Hollywood and Silicon Valley, and in particular the role of Google.

Among those giving input to the committee was Film Colony founder Richard Gladstein, who cited search engines as “aiding and abetting” criminal piracy sites by placing them atop search results. As an example, he said that before the hearing he entered “Watch ‘The Cider House Rules'” into his phone, the the first three results that came up were illegal sites.

Also at the hearing was Fred von Lohmann, Google’s legal director for copyright. “Why couldn’t we find a way, in all of your wonderful genius, to prevent being directed to illegal activity,” Gladstein said at Tuesday’s hearing at UCLA. He cited the search giant’s ability to block such things as child porn sites, and noted that such illegal activity “takes money out of the pockets of grips and gaffers … and all those people on a movie who are not actors.”

“We are not in a position to decide what is legal and what is illegal online,” Von Lohmann responded.

Then Gladstein asked, “Is it legal or illegal to download a movie that you don’t own?”

Von Lohmann answered, “I agree. Downloading a movie, in order to watch it without paying for it, is infringing. That is not the problem. The problem is when you have over a trillion websites, you have hundreds of thousands of film titles, millions of song titles, not just in English but every language around the world … as a search engine there is no magic way for us to know in advance what is legal and what is illegal online. We rely on copyright owners to inform us.”

He noted that Google has been demoting sites based on the number of takedown notices they receive from copyright owners. He also said that such sites don’t pop up when users simply put in the name of the film title without the word “watch” before it.

“The good news is if you look at Google Trends, you will see [that you can] compare the ‘watch film title’ query to the actual film title query. I guarantee you that nobody is searching for the ‘watch film title’ query. What people search for is the name of the film.”

House Judiciary Committee chairman Bob Goodlatte (R-Va.) has been in the midst of a review of the Copyright Act, and, as part of a traveling “listening tour,” has held 20 hearings on whether its provisions still work in the digital age. On Monday, the committee held a hearing in Silicon Valley.

At points, Goodlatte often pressed those who spoke to offer their ideas on what needed to change.

Others who spoke included Susan Cleary, general counsel of the Independent Film and Television Alliance, who recommended legislation to make large-scale illegal streaming a felony. She also called for what she characterized as “notice and takedown and staydown,” or measures to ensure that once pirated material is blocked it doesn’t quickly pop up again on some new site.

The Digital Millennium Copyright Act includes a safe harbor provision that shields websites from liability for infringing content users post on their site as long as they promptly remove it upon getting a takedown notice from the copyright owners. But content creators long have complained that pirated material often quickly pops up elsewhere. The DGA’s Kathy Garmezy said they “would very much welcome a dialog” around the notice-and-takedown system.

Von Lohmann, however, said that it is “not an easy technical solution.” YouTube’s Content ID system identifies infringing content that has been posted, but it is via digital fingerprint from video material supplied by copyright holders.

“It is not one size fits all technology,” Von Lohmann said. “Content ID cannot clean up the web. It cannot identify content that is just a bunch of HTML on a website.”

Another major issue is over music licensing, as a major battle brews between streaming services who content that they are paying too much to songwriters and artists and publishers who say they are getting paid too little.

Terry Fahy, vice president of radio broadcaster Salem Los Angeles, said that “streaming rates are too high. It’s inhibiting radio to invest in streaming programming.”

“It is clearly not a win for the public as far as audio choices go,” he said.

But Goodlatte asked if there was a “potential deal here,” given that broadcasters pay nothing to performers when they play their songs over the air.

“The difference with radio as compared to any other audio service is that we are completely free, and also provide a uniquely local focus that a lot of other mediums do not do,” Fahy responded.

“But isn’t Pandora completely free?” Goodlatte then asked.

“No. because you have to pay for Internet access and data rate,” Fahy answered.

“I got to buy a radio, and if I want to listen on satellite radio, I have got to pay for that service,” Goodlatte said.

Dina LaPolt, attorney adviser to Songwriters of North America and representative for Steven Tyler, urged the committee to look at changes to the rates for songwriters, which she called “among the most vulnerable group in the business because they don’t have their celebrities to trade on.” Among other things, royalties for songwriters are largely governed by a consent decree between the Department of Justice and BMI and ASCAP, although it is currently under review.

While Goodlatte’s copyright review may lead to substantial changes to the law, it is a process expected to take years. In the meantime, some of those at the hearing said that some issues would have to be resolved via voluntary agreements.

“If we are all going to work together to move forward to the future, we have to stop all the fighting,” LaPolt said. “We have to start making deals. We have to start talking to each other. We have to start listening to each other. Because I believe that everybody here has their own opinion. But their own opinion, very strong opinions, are great, but they are not making deals.”

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