Google and the ennui of learned helplessness

By Neil Turkewitz

Google has agreed to pay $8.5 million to settle a class action alleging violation of privacy, and proposes — rather than distributing funds to the aggrieved class members, to pay the lawyers representing the class $2.125 million, to pay $1 million in administrative costs, and to distribute the remainder to organizations that, at least in theory, advocate for positions consistent with those of the class. But if those organizations also tend to advocate positions supported by Google, is there something fishy going on? The Supreme Court will be called upon to answer that question in the case of Frank v. Gaos.

Antigone Peyton has filed a brilliant brief on behalf of artists David Lowery, Blake Morgan, East Bay Ray and Guy Forsyth. Author and social commentator, Yasha Levine, has dubbed it “A must-read on how Google gamed the court system to funnel money to pro-Google thinktanks.” In the brief, Ms. Peyton argues (and documents) that something is rotten, and I agree that we do indeed appear to have landed in Denmark. I encourage anyone interested in how we effectively govern in an environment in which certain corporations wield more power than Nation-states — indeed, one in which they openly assert the irrelevance of democratic sovereignty, to read the entire brief. It’s not long, and it’s not filled with legal jargon.

In the meantime, with the consent of the author of the brief, I provide some key excerpts below. For ease of reading, I have omitted citations and references, and some of the statements are removed or rearranged. Her brief is both well argued (as you will see) and well-documented (which you won’t see unless you read the original brief). A couple of terms you need to know:

Amici — literally friends of the Court. People who feel that they have something important to say about the case but who are not parties to the dispute.

Cy pres: A cy pres award is the distribution of money from a class action settlement to a charitable organization when distribution of the award to the aggrieved class members themselves is considered impractical.

The Brief

Amici are particularly focused on the harm resulting from cy pres awards to institutions that are directly or indirectly using cy pres funds to engage in activities that are contrary to artists’ (and class members’) rights…

In this settlement, like in many others, the defendant (Google) is the one that gets the largest benefit from the cy pres distribution. Indeed, publicly available information regarding Google’s cy pres practices supports the conclusion that Google seeds and funds some of its most loyal academic and nonprofit allies by payments through cy pres awards in class action cases. Those recipients, in turn, have formally and informally supported or taken up Google’s causes in cases and controversies unrelated to the class action case that awarded the cy pres funds.

One of those causes is Google’s assault on copyright law. Google needs and uses a massive amount of digital content to drive users to its suite of products. Google then serves advertising to all these users and in turn famously scrapes their personal data into endless segments. One of the biggest impediments to Google’s ability to sell advertising around that scraped and curated content is copyright protection.

Google has engaged in a massive campaign to sway court opinions against support of artist rights and fair compensation for protected works. And it spends a lot of time and money in an effort to shape public opinion about its commercial goals and activities in addition to the vast sums it spends on lobbying for favorable laws.

The touchstone of a shadow campaign — like Google’s campaign against protection and recognition of artists intellectual property and remuneration rights — is identifying a credible third-party source to make its message resonate more deeply with the recipient. As we have seen in recent times, the Internet (and social media) are an effective weapon for manipulating public messaging. Of course, a major challenge to sustaining these “cyberturf” operations is funding them in a way that does not reveal the true source of their funding, and gives the funder plausible deniability.

Nowhere is that proxy fight more obvious than in the struggle to protect copyright and receive adequate royalties for use of artists copyrighted works. Regular cy pres recipients the Berkman Center, the Center for Democracy and Technology, and Stanford’s Center for Internet and Society are also consistent opponents of artist rights and supporters of Google’s interests.

From the vantage point of amici, cy pres awards are a well-known loophole used to fund Google’s wide-ranging assault on the interests of copyright and professional recording artists’ and musicians’. The cy pres process, which is simply rubber stamped by trial courts undertaking little to no analysis of the intended recipients, allows Google to pay academics and nonprofits who support its causes instead of class members, avoid liability and damage payments to the public, and get a tax break for payments made to non-class members through use of the cy pres distribution vehicle. Class members get nothing or virtually nothing to compensate them for the harm that is the subject of the class action.

Artists such as amici watch in powerless amazement as the lower courts allow millions in cy pres awards to be funneled to Google’s academic and nonprofit influencers through dubious class action settlements such as the one which occurred in the Google Buzz case. In re Google Buzz Privacy Litig., 2011 WL 7460099 (N.D. Cal. Jun. 2, 2011) (awarding $500,000 to the Berkley Center for Law and Technology, the Berkman Center, and Stanford; $1 million to the EFF; and, at the judge’s election, $500,000 to an ethics center at the University where the trial judge taught as a lecturer). They then see nonprofits like the EFF support a long string of copyright cases that attack copyright protections and copyright holders, from Grokster to Limewire to the Lenz case.

Amici and other artists are members of the class harmed by Google’s activities that led to the current class action lawsuit for violation of their privacy rights. But Google has been allowed to earmark funds that should be distributed to members of this class, including amici and other artists, to Google’s allies in its war on reasonable copyright protections and payment for use of copyrighted works.

By directing class funds to organizations that will directly or indirectly use the funds to advance interests antagonistic to portions of the class, class counsel and class representatives have not adequately represented this portion of the class, as required by Rule 23(a)(4). This portion of the class is actually harmed by the distribution. Ultimately, the interests of amici and other class members with copyright interests that are adverse to Google’s would be better served if the settlement funds were thrown away or burned rather than given to the cy pres recipients approved by the trial court.

Amici believe one of Google’s strategies to overcome resistance to its commercial goals from the artist community is by persuading creators that resistance is futile — like O’Brien and Winston Smith, they must not only refuse to believe what they know to be true, they must truly believe that which they once knew not to be true. One of Google’s “go to” methods for accomplishing their commercial goals is through messaging by its nonprofit allies through lawsuit warfare, lobbying, public messaging, or social media.

Google believes that they are defining the inevitable and inescapable conclusion of the course of modern history, and that any modalities that advance this narrative are therefore just, informed and appropriate. They apparently believe that God, in whatever form he or she takes in this march towards the Singularity, is on their side. Ms. Peyton captures this nicely when she writes that “Google’s cy pres practice simply compounds the ennui of learned helplessness that artists feel in dealing with the company.” Learned helplessness. That is something that is ripe for disruption. The Supreme Court should reject this cynical ploy to undermine the basic fairness at the root of our judicial system. Perhaps that will send ripples into the political system that change is nigh, and it doesn’t necessarily entail abandoning democratic governance and our individual rights.