If the definition of insanity is doing the same thing over and over but expecting different results, then Google and the Internet Archive (IA) are clearly driving creatives insane.

For those who may not be familiar with the Internet Archive, it is the nonprofit entity that congratulated itself for making the “heroic” decision, as coronavirus lockdowns began sweeping the nation, to make its collection of 1.4 million books – including huge numbers of contemporary books still in print – available to “borrow” digitally worldwide. The IA, which is now facing a lawsuit for this unacceptable behavior from four of the major book publishers, called its rogue repository of other peoples’ works a “National Emergency Library.” Copyright blogger David Newhoff saw it differently: as an attempt to use the pandemic to “justify looting.”

In July, TorrentFreak reported on a shocking statistic involving takedown notices sent to Google and involving the Internet Archive. “According to data published by Google,” wrote TF, “99.2% of complaints against IA result in ‘no action taken’, with just 0.1% of complaints resulting in some kind of takedown.

Let’s break that sentence down:

• A website, the Internet Archive, has taken upon itself to offer millions of digitized creative works to the public without first getting permission from the copyright owners – a direct violation of those owners’ Constitutionally-protected copyrights.

• The world’s most powerful search engine is offering up links on IA to those infringing creative works when people search for those works.

• When the owners of the infringing works ask Google to stop doing that, they are being summarily ignored.

Along with the 1.4 million books now available to borrow, the Internet Archive claims to host around 20 million text-based offerings in total, including research papers, pamphlets, newspapers, and other materials. It also hosts 4.5 million audio recordings (including 180,000 live concerts), 4 million videos (including 1.6 million television news programs), 3 million images, and 200,000 software programs. With such a volume of works in its online storage tank, “Internet Archive can’t proactively police every piece of content that ends up on its servers,” TF writes. So, “with four million unique IP addresses accessing the site every day, some infringement is bound to take place.”

It is terribly sad that internet platforms have devalued creative work to the point where infringement is “bound to take place” – as though piracy that affects 5.7 million creative livelihoods is just a fact of life now, rather than a violation of creatives’ rights that can and should be stopped. Under current law, it is neither Google’s nor the IA’s responsibility to clean up this inevitable infringement. It is the responsibility of the owners of those infringed works.

Thanks to Section 512 of the Digital Millennium Copyright Act (DMCA), internet companies and nonprofits do not have to clean up systemic piracy on their platforms so long as they address individual infringement notices about piracy on a case-by-case basis. That means it is up to the creatives who own the works to spend time and resources they do not have to police the theft of their property online and to send takedown notices for every single individual act of theft…. which can number in the hundreds or the thousands or greater, across multiple platforms. 

Which brings us back to Google’s strange negligence toward DMCA takedown requests for links related to the Internet Archive. Some of these notices, TF points out, are probably dovetailed with notices to the IA itself trying to get the same work scrubbed at the source (which could mean the work is already gone, requiring no further action). And certainly, some of the claims are erroneous. But there are “plenty of legitimate claims too,” TF reports. And, if plenty of legitimate claims are coming down the pipe, shouldn’t Google be addressing them as per the DMCA? 

Instead, it’s ignoring virtually all of them. What gives?

“Copyright holders would be better off sending complaints directly to the site itself,” shrugs TF. Oh – that’s nice. But those links on Google are the primary way that people find out what’s on IA.

TF also reports that Google, according to its latest data, has received 10,840 delisting requests involving the Internet Archive, covering 100,075 URLs. All of those links delivered up in Google’s search results are leading to allegedly pirated works on the same website. That is just not a situation to be ignored, even if some of the notices might be somehow faulty.

And yet, the numbers don’t lie – Google is definitely, willfully ignoring the situation. Which begs the question: Why? 

Is Google in cahoots with the Internet Archive? Possibly. Both have built their reputation on playing fast and loose with the labor and property of others, after all. Perhaps Google sees the IA as a kind of little brother and is trying to help out wherever it can – by turning a blind eye to IA-related delisting requests.

All possible. But the real answer is probably much simpler.

Google ignores the IA takedown requests because safe harbor laws like the DMCA, and its sibling the Communications Decency Act (CDA), give it a liability shield from piracy and many other crimes enacted on its platforms.

It ignores them because its ad-driven business, which relies on promoting “free” access to works it does not own and did not make, has helped it grow into a trillion-dollar company.

It ignores them because the less accountable Google remains for the terrible behavior of its users, the wealthier it becomes.

And, it ignores them for the same reason that it hasn’t bothered to develop a systemic solution to all piracy on its platform – and, for the same reason that it also refuses to offer viable content protection tools to the creatives tasked with solving it on their own.

Google ignores with impunity nearly 100% of takedown requests for a website mired in a massive piracy lawsuit for one simple reason. 

Because it can.