Curation As Problem, Not Solution

“DVD Jon” Johansen has an odd post on his blog regarding the shortcomings of the Android Market. I call it “odd” simply because it’s a loosely-joined set of complaints, making it difficult to follow. Some points I agree with, others less so.

However, the one he spends the most time on (copyright and “trademark” violations) and his proposed solution (“Google does far too little curation of the Android Market”), are flawed enough to warrant a response.

Given the current US laws on the books, there are precisely two ways to do curation: perfectly, or not at all.

By “perfectly”, I mean that the operator of the site has to be so confident that they block every piece of infringing content that they are willing to take the risk of being sued for anything they might miss. This is because of the ever-popular DMCA.

The DMCA rules, in a nutshell, state that an Internet host is not liable for infringing content if they have a “takedown” process in place and do not have specific knowledge of infringing content. It is the latter part that saved Google when it was sued by Viacom. The summary judgment reaffirmed that, even though Google may well know that there is infringing content in general in YouTube, they have no way to know what is infringing specifically unless and until they get a takedown notice.

Sites that proactively block content they believe is infringing demonstrate that they can manually determine what is and is not an infringement and therefore are more likely to lose their protections under the DMCA. Hence, if Google were to start pulling apps off the Market based upon prima facia evidence that they violate copyrights, that opens Google up to be sued by anyone infringed upon by an app that Google, for whatever reason, misses. And, as anyone who has followed the various RIAA lawsuits can recognize, infringement cases can get rather expensive.

It is not surprising, therefore, that Google waits for takedown notices. It performs a fair number of these – Tetris clones were recently yanked, for example, based upon a takedown notice. Google is performing reactive curation, following a DMCA takedown process, rather than proactive curation, a la Apple. If Disney, Warner Music Group, or others wish to get rid of these apps from the Market, all they have to do is file a takedown notice.

Moreover, curation does not resolve Mr. Johansen’s issue:

These [infringing] apps are damaging to companies that are building legitimate Android music apps (e.g Rdio, Spotify and MOG), not to mention Amazon whose MP3 store comes bundled with most Android phones in the U.S.

The issue is not that these apps are infringing. It is that “legitimate Android music apps” are not being found. An improved Market can certainly help with that. However, an improved Market is only a tiny piece of the puzzle. For example, one would seriously hope that more people get the Spotify Android app through links from Spotify than would stumble upon it in the Market. If not, Spotify has much bigger problems than lack of distribution of their Android app, because it means insufficient people know or care enough about Spotify to visit their site. Discoverability is a problem regardless of whether the “noise” is due to infringements or not, but the Market is not the be-all or end-all solution for that either. In the end, Spotify and others need to market their services, with their Android app coming along for the ride.

In a chat I had with one Google developer advocate earlier this year, I said that the Android Market either had to become best-of-breed or to become irrelevant, replaced with other markets that are best-of-breed. Ironically, Mr. Johansen is in prime position, via doubleTwist, to take a shot at the latter, and if doubleTwist is interested in help enabling doubleTwist to install Android apps, I’d be happy to brainstorm with them, as I’ve done a little research in this area. I certainly hope the Android Market gets better, but I doubt that proactive curation is a viable part of that improvement.

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