Last week Web Walk columnist Chris Barton criticised moves by Rupert Murdoch's News Corporation to take on Google over content aggregation. Here, Warren Lee, responds
Something isn't right when journalists, who rely on copyright law to protect their work and feed their families, hit out at "the contortion of copyright laws to line the pockets of corporate rights holders at the expense of the public and the artists who create the work".
On one level
there is nothing difficult about copyright laws.
If you are a carpenter and make tables for a living, people aren't allowed to just take the tables. They have to pay for them. If they don't, it's called theft.
If you create a written work for a living, like a journalist, then people have to pay for that work too.
But because you can't steal a sentence, a movie, or a picture the same way you can steal a table, the law that protects the film-makers, photographers, authors and journalists is called copyright.
Because of that copyright, the law protects the livelihoods of those people and makes it possible for them to go on making movies, gathering news, writing songs or whatever it is they do.
It's true that "corporates", "media barons" and even "Murdoch" also gain the benefit of those laws, but so what?
You can't steal the furniture of the rich either.
There are, however, two things that complicate the copyright picture. The first is that in a digital age, enforcing copyright is much harder than it was in the days of the photocopier.
The difficulty with this enforcement leads some to conclude that the idea of copyright has somehow outlived its usefulness and, in the digital world at least, it needs to be abandoned.
Others say the only way to enforce it in that environment is to reverse or eliminate the traditional onus of proof and that under such a regime, only the guilty would have any reason to fear.
They are both wrong.
The fact that it is difficult to enforce copyright law, doesn't make it okay to infringe basic rights. But it also doesn't make it okay to ignore it.
Much as the internet has made our privacy much harder to protect, it has done the same with copyright. But we shouldn't be giving up on either any time soon.
The second complication is "fair use" And this is where Google, and "the Google debate" comes in.
The three things that bother newspaper publishers the most are:
* Google is clearly benefiting from indexing newspaper content it does nothing to create. Maybe it's true that the publishers also benefit, but it seems pretty clear that they don't benefit as much.
* Further, and critically, the publishers never said yes to Google indexing that content. Ever. As Ariana Huffington and countless others have said, they didn't say no either, but that's hardly the point. Not saying no is not the same as saying yes.
* But perhaps most importantly, while it is, in theory, open to publishers to negotiate a new deal with Google, the legal deck is stacked against them doing so. Any negotiation needs leverage or bargaining power. But the publishers have little of either with Google.
Google has a massive, global, virtual monopoly on the search market. And, perhaps, all credit to them. But they have created a business the scale of which the media has never seen before and which faces little or no competition.
Publishers, on the other hand, face increasing competition everywhere they turn. Even the large ones like News Corp are unlikely to be the only provider of news and information in their market.
So when a publisher says to Google, "I want a new deal where I get to share in your bounty or else," and Google says "or else what?" and the publisher says, "ummm, errrr, or else we will not allow you to index our content", Google assumes they are bluffing and says: "No deal."
Google has, to date at least, been right in that assumption every time. To solve this problem, and to allow negotiation to take place on an even playing field, the publishers would need to band together.
But here's the thing. It's difficult to do so under the competition laws of the various countries in which they operate, because that would be collusion.
So Google remains confident no one will individually take them on. And laws in various countries stop them from doing the only thing that could even the playing field, which is to let them negotiate collectively.
That certainly doesn't seem fair especially when we remember that they never said yes to being in this situation. So in a way, Google collectively opted them in and gained vital critical mass in doing so, but they aren't allowed to collectively opt out.
So how about this for a way to create a choice?
Microsoft or Yahoo announce a "new deal" with one global publisher where they are paid for links in exchange for that publisher de-indexing from Google. They also announce that the same deal is open to all publishers.
No one would collude, but everyone would end up with a choice.
Let's be clear. It is not a foregone conclusion that anyone would take such a deal. Maybe no one would.
If I had to choose between de-indexing Google in exchange for a paid deal with another search provider with a fraction of the market share, I don't know what I would choose.
But I, and I suspect the majority of publishers on the planet, would sure like to have a choice.
* Warren Lee is chief executive officer of APN Online, which publishes the nzherald.co.nz website and over 30 other newspaper and magazine sites in Australia and New Zealand. The views expressed in this article are those of Warren Lee personally and not necessarily those of APN.
