In light of the hysteria generated by the Associated Press’s plan to go after online news aggregators, Google is quick to point out any action the AP takes won’t apply to them. Why? Because Google already struck a deal with the AP.
That’s not news. That happened a while back when Google decided it smarter to strike a licensing deal than fight for its fair use rights to index, frame, snippet, and link to copyrighted content already established by precedent in previous lawsuits and by US copyright law.
What’s news is how Google is walking this fine line, defending fair use with lip service and striking deals just to avoid conflict. Google is uniquely positioned to take on the AP on this issue, but as I’ve said before, the giant Viacom lawsuit seems to have made the company gun shy.
Google’s Associate General Counsel for Products and Intellectual Property, Alexander Macgillivray, drops in the company’s immunity rather awkwardly amid a larger defense of fair use on Google’s Public Policy Blog. Alexander calls Google’s partnership with the AP “an experiment” before illustrating why such partnerships ideally are unnecessary for aggregators:
“We show snippets and links under the doctrine of fair use enshrined in the United States Copyright Act. The fair use doctrine protects transformative uses of content, such as indexing to make it easier to find [pdf]. Even though the Copyright Act does not grant a copyright owner a veto over such uses, it is our policy to allow any rightsholder, in this case newspaper or wire service, to remove their content from our index — all they have to do is ask us or implement simple technical standards such as robots.txt or metatags.”
And such has been the argument presented to those who complain, the AP chief among them. A simple question: If aggregators are somehow stealing from you, why don’t you opt out? The simple answer is, as always: we need them to drive traffic and gain exposure.
Despite apparent reliance on aggregators, it doesn’t stop Rupert Murdoch (one of the newest directors of the AP) right-hand man and Wall Street Journal editor Robert Thomson from describing aggregators as “parasites or tech tapeworms in the intestines of the Internet” or characterizing Google as a pimp: “Google encourages promiscuity — and shamelessly so — and therefore a significant proportion of their users don’t necessarily associate that content with the creator.”
So what’s really interesting here is that both the news industry and Google are engaging in a bizarre kind of doublespeak. But in both cases, it doesn’t appear to be about what is right, just, or legal. It’s about money. The AP wants more of it. Google wants to keep more of what it’s got. For Google to do that, it means licensing deals are far cheaper than megamultinational corporation litigation, such as the billion-dollar fight it has with Viacom.
So take Google out of the equation. Clearly the Web’s former champion of fair use has lost interest in the fight. Who does it leave? Yahoo? Microsoft? They’ve already cut their deals. They won’t be interested either. Imagine if the AP thought it might have to take on the combined legal departments of Google, Microsoft, and Yahoo. They might be a little less quick to rattle their sabers, you think?
So it’s not about the big guys, either. They’ve already fallen in line. The next step is to scare the fair use bejeezus out of smaller games like TechMeme or Topix or any other unapproved aggregator. The AP, without a legal leg to stand on—really? You want to control how the entire Internet communicates about, summarizes, and links to content?—but without any major opposition outside of the formidable and nonprofit Electronic Frontier Foundation, is swinging its giant club at the heads of tiny Net villagers, all in the name of protecting newspapers with faltering business models.
That also makes it about power and territory. The AP, which now becomes the latest arm of the ever-growing information mafia, wants to control the news on the Internet, the last refuge of independent journalism. Therefore, any legal action the AP takes should be judged as anticompetitive, and should be investigated by the FTC.
If not, what’s next? Will independent, nonprofit bloggers be threatened with lawsuits for mentioning and linking to an AP news story? What about your mom on Facebook? Is she allowed to send you a link and summarize. That might sound extreme, but that’s basically the AP’s logic. What about a simple tweet? Will that be off limits too? Will it work both ways? Will it be okay for newspapers to take a MySpace post and reprint it in the paper?
