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Google accused of hypocrisy on Grooveshark ban

Prominent Silicon Valley watchdog group slams Google for not disclosing exactly why it removed Grooveshark from its app store. Group also notes irony of Google's apparent lack of respect for DMCA.

A watchdog group that is also a longtime Google ally on copyright issues, has accused the company of being hypocritical when it recently removed a controversial music app from its app store.

Kent Walker (left), Google's general counsel, following his appearance earlier this month before a U.S. House subcommittee looking into online piracy. Greg Sandoval/CNET

Two weeks ago, CNET reported that Grooveshark, a music service that provides free access to songs by enabling users to post their own music to the site, had seen its app banned from the Android Market. It later came out that Google acted after receiving a complaint about Grooveshark from the Recording Industry Association of America (RIAA), the trade group for the four largest record companies. The search giant banned the app without providing Grooveshark any warning or opportunity to defend itself. Google also didn't disclose how exactly the music company violated Google's policies, according to Grooveshark.

EMI and Universal Music Group, two of the top record labels, have accused Grooveshark of copyright violations in separate lawsuits filed against the Gainesville, Fla.-based company. EMI settled its suit, but the legal battle with Universal Music Group continues. In a blog post yesterday, the Electronic Frontier Foundation (EFF), a group that advocates for Internet users and technology companies, noted the irony in Google's apparent loss of respect for the concept of transparency and for the Digital Millennium Copyright Act (DMCA).

Julie Samuels, an EFF staff attorney, pointed out that in the not-so-distant past Google criticized Apple for allegedly lacking transparency and adopting "draconian" business practices.

"But who's being draconian now?" Samuels wrote. Google did not respond to an interview request.

Samuels then took aim at Google's relationship with the DMCA's safe harbor provision. In past dustups with copyright owners, Google has repeatedly argued that the DMCA protects services, such as YouTube, eBay, and Craigslist, from being held liable for acts of copyright infringement committed by users. That's the same legal argument Google used to defend YouTube against a copyright lawsuit filed by Viacom in 2007. That's the same argument Grooveshark managers say protects them.

"Did Google's takedown intentionally coincide with its appearance before the House Judiciary Subcommittee on (intellectual property) in an effort to make itself more sympathetic to Congress?"

"That Google would perform a copyright takedown without requiring a valid notice under the (DMCA) is surprising to say the least," Samuels wrote. "Especially given that Google just last week filed its reply brief in the Viacom v. YouTube appeal, vigorously defending its policy of responding only to valid DMCA notices where copyright complaints are concerned."

The Grooveshark case is the latest controversy to raise questions about where Google stands on copyright. For much of the company's history, Google has crossed swords with newspapers, film studios, and record companies on copyright issues. Free-content proponents loved Google for taking on big media. Is there any company that has done more to promote the free flow of information than Google? But during the past year, Google has appeared to soften its stance.

In December, the search engine announced it would start booting alleged copyright violators off AdSense, the company's advertising program. Google said it would try to block terms associated with piracy from appearing in the search engine's Autocomplete function. Google also supplied the RIAA with antipiracy software tools that it once planned to offer for a fee, according to a music industry source.

If Google is fighting piracy more aggressively, it's likely due to two separate forces propelling the company in that direction: the first is economic.

Google is looking to acquire top video entertainment content for Google TV and YouTube's movie rental service. In music, Google is trying to negotiate licenses from the top labels that would enable the company to store consumers' existing music libraries on its servers. Both the music labels and film studios have used this leverage to pressure Google to do more piracy-busting.

In Washington, the government has become very serious about fighting piracy. President Barack Obama, both major political parties and both houses of Congress seem intent on thwarting infringement of intellectual property.

There's so much momentum for antipiracy legislation now, that it's almost certain a bill closely resembling the one introduced into the Senate last year by Sen. Patrick Leahy (D-Vt.), called the Combating Online Infringement and Counterfeits Act, will become law this year. This will give the government the ability to speed up the process of shutting down suspected pirate sites and ordering credit card companies, bandwidth providers and advertising firms, such as Google, to cease doing business with these sites.

This is just one of the ways how the government plans to come down hard on companies that pirate or assist in piracy. To critics on Capital Hill, Google is solidly in the latter camp.

During a hearing two weeks ago held by a U.S. House subcommittee investigating online piracy and counterfeiting, lawmakers questioned Kent Walker, Google's general counsel, about why the company didn't do more to block search results for pirated and counterfeit goods. One of the bright spots for Google during the hearing was the news that the company had banned Grooveshark's app, which broke earlier the same day. Rep. Bob Goodlatte (R-Va.) applauded Google for removing the app.

But in her blog post, Samuels suggested that the intention of the ban was exactly that, to win favor from from lawmakers.

Click on image to read Lawmakers tell Google to do more on antipiracy. Greg Sandoval/CNET

"Did Google's takedown intentionally coincide with its appearance before the House Judiciary Subcommittee on (intellectual property)," Samuels wrote "in an effort to make itself more sympathetic to Congress?"

You can judge for yourself. Grooveshark said Google removed its app on April 1, five days before Walker was scheduled to testify before Congress but months after representatives from the music sector asked Google to pull the app, multiple music industry sources told CNET. To those requests, Google had politely refused, the sources said.

That may come as good and bad news to the free-content crowd. Google's slow response could mean that Google continues to hold the line against content creators. But it also could illustrate a willingness by Google to throw accused copyright violators under the bus when pressured.