+Analysis A few days ago President Obama wrote a cheque he knew he couldn’t cash - and this week the European Parliament will write another.
Reports suggest that the Parliament is drafting a motion calling for the break-up of Google and its ilk.
Much like Obama’s net neutrality pledge, it’s meaningless, but even so, it’s still hugely significant: a landmark change in Europe’s relationship to US business. The problem is, both philosophically and practically, Europe isn’t geared up to take on Google and come away with anything that looks like a win.
So how can this motion be both meaningless and er, not meaningless at the same time? It looks like a contradiction – so let’s have a look.
Gesture politics – it’s what we do best
The proposed motion will be largely symbolic, because actually, all Parliamentary motions are designed to be symbolic. Power doesn’t reside in the European Parliament, but in the European Commission – the Parliament’s function is to rubber-stamp policies generated by the Commissioners. So the European Parliament excels at gesture politics; you can even say it’s constitutionally optimised to excel at gesture politics. The Parliament tables dozens of motions every week (here they are) requiring a handful of votes (not a full Parliamentary vote), and this is another – sandwiched between motions.
You may wonder what the fuss is about.
Google may argue that billions of individuals have opted to use its services by choice, people don’t know who their MEP is. The Parliament is a symbol of Europe’s democratic deficit. Turn-out is low, and voters only really turn up to give the EU a good kicking: in the UK elections UKIP won the most votes. Anti-EU candidates flourished across Europe – which is hardly surprising when austerity is mandated to keep Europe’s currency union together. Who’s really out of touch here, Google will ask – Google, or you?
It's no MICROSOFT, after all...
Google today wields enormous power over other industries, in a way Microsoft never could, even at the zenith of its influence. Newspapers didn’t close, and musicians didn’t go hungry, because Windows was late. No Active X control ever destroyed an economic sector. Yet you can plausibly argue that the consequences for European industry and its citizens freedoms are at least indirectly attributable to Google’s strategic use (and abuse) of other people’s property and personal effects.
A case in point: Google ruthlessly exploits laws designed 20 years ago to protect fledgling internet companies from much more powerful industries. A vivid example of this can be found in Google’s contracts with independent music companies. The contracts relied upon the provision of limited liability – “safe harbour”– for service providers for their users' copyright infringement. These DCMA provisions were designed to protect ISPs and other service providers in the mid-1990s, when the public internet was in its infancy.
Today, they are favourable to huge internet aggregators, and load the deck against individuals and tiny companies seeking to protect their work. A vivid example of this can be found in Google’s contracts with independent music companies, where Google required rights-holders to promise not to sue an unlicensed uploader, thereby protecting Google’s supply chain. “You can sign and get a fraction of a penny,” Google was saying, “or you can refuse to sign and get nothing. It’s up to you – but either way, we’ll use your work and make money off it.”
Safe harbour clearly needs revisiting – these laws should not be used as a competitive weapon by a giant corporation to secure favourable terms with much smaller entities. Yet when Europe’s digital commissioners were sworn in recently, the ramshackle audience hollered that they uphold the sanctity of safe harbour, as if it were a pledge of allegiance.