Google vs. Newspapers: What is the Real Issue?

Google recently settled a suit with at least some of the plaintiffs in a case involving news photographers and journalists in Belgium. This isn’t the first time that newspapers have been angry enough to sue Google, and it probably won’t be the last. But what is the real issue behind all the screaming?

In this article, I’m going to focus mainly on the Belgium case; please keep in mind that Google is being challenged on several legal fronts, on similar grounds. The plaintiffs tend to toss the word “copyright” around a lot, but the law surrounding copyright is somewhat complicated and, despite certain international treaties, not uniform from country to country (and certainly not uniformly enforced!). But I’m getting way ahead of myself here.

Let’s go back to March of this year. That’s when Copiepresse, a rights-management society for the publishers of the French- and German-language daily press, started legal proceedings against Google. Copiepresse objected to Google’s inclusion of Belgian news sources in its Google News without getting explicit permission first. Information about the case, and a summons, was sent to Google. Google didn’t make it to the first hearing (held September 5), at which the court ruled that Google must remove French and German language content from the publishers represented by Copiepresse from its Google Belgium web sites or pay a fine of one million euros a day. Google was also required to post the text of the judgment on its home page.

Google did in fact comply with the ruling – not immediately, but quickly enough that it did not have to pay any fines. It was granted an appeal, however. And somewhere along the line, several other Belgian groups joined in: Sofam, SCAM, SAJ, and Assucopie. Google reached separate settlements with Sofam and SCAM. Sofam is an organization representing Belgian photographers, while the SCAM organization is more geared toward journalists, and covers mostly audio/visual content. As of this writing, the other three groups are moving forward with the suit.

It may be hard to imagine, but these publications are genuinely upset that Google is indexing them without their permission. Excuse me? Have these companies never heard of robots.txt? Danny Sullivan wondered about that, and spoke with Margaret Boribon, secretary general of Copiepresse, to get a better handle on the nature of their complaint.

Boribon seemed most concerned that Google wasn’t really playing by the rules of copyright, despite the search engine’s protestations that it respects these laws. Certainly one could use robots.txt; Google doesn’t index any sites against their wills. But “If you do so, you admit that Google does what they want, and if you don’t agree, you have to contact them. This is not the legal framework of copyright,” Boribon pointed out.

So does Boribon expect Google to say “Mother, may I?” to every site before sending out its spiders? The law might call for that, but it would be a logistical nightmare. Using robots.txt is the best way to automate the process. To Boribon, this is not good enough, because it is not legally endorsed. Danny Sullivan makes the point that this will probably change with time.

But there’s more going on here than that. If it was simply a matter of making sure that Google didn’t index the sites, robots.txt ought to be the right answer. Copiepresse is seeking for its members everything that copyright implies, not just being asked for explicit permission to use the item(s) in question. “Our purpose is not to be excluded. Of course, we want to be in the system, but on a legal basis,” Boribon explained. “We want to be remunerated.”

This inspires so many reactions, ranging from “are they nuts?!” to “yes, but…” that it’s hard to decide where to begin. I want to start with Copiepresse’s attitude, which is apparently shared by the World Association of Newspapers (another group that isn’t very thrilled with Google). But before I do that, let me see if I can provide a quick layman’s explanation of copyright. (The usual disclaimers apply: I am not a lawyer, etc.).

The whole idea behind copyright is that those who put the effort into creating something should receive compensation for their efforts. If somebody uses your work without your permission – for example, if they copy your article and post it somewhere else (especially if they use someone else’s name) – you can sue them. Usually people are nicer about these things (a good cease-and-desist letter or a phone call can often be enough to get them to take it down if it’s a question of posting online). But the point, and badly oversimplified at that, is that when someone steals your work in that manner, you aren’t receiving the compensation you deserve; you’re being exploited.

And that brings us back to Copiepresse. What Sullivan took away from his interview with Boribon is that her group and the World Association of Newspapers believe that Google is exploiting their members. As near as I can tell, they seem to think that Google is making money off of their content by including it in its index, and not giving them anything in return.

The Belgian publications will find out soon enough whether Google was giving them anything of value in return. The search engine interpreted the ruling in the case in which it was involved quite literally. Not only did it remove links to specific Belgian news sources from Google News; it also removed them from Google Belgium entirely. You can still reach the sites from other versions of Google. But their traffic may already be dropping off.

Getting search traffic doesn’t translate into remuneration in any traditional sense. But it can’t be discounted. Why do search marketers strive to increase their traffic from the search engines, after all? As Danny Sullivan put it, “It’s free, easy and converts well.”

And newspapers do get a significant amount of traffic from search engines. It varies tremendously depending on the paper, of course, and how much attention they devote to search engine optimization and search engine marketing. Some observers have said a newspaper’s website can expect to see anywhere between eight and 13 percent of its traffic arriving from the search engines. Sullivan quoted Marshal Simmons, chief search strategist for the New York Times Company as saying that “the NYT gets approximately 22% of its traffic from search engines. This number is very actively growing.”

Taking a wider view of the market, Sullivan also asked Bill Tancer at Hitwise about figures for news sites and search engine traffic. Hitwise tracks more than 3,000 sites in its News & Media – Print category. During one recent week, that category received 13.66 percent of its traffic from Google – and 22.44 percent of that category’s traffic as a whole came from the search engines. Somehow, that doesn’t sound like Google is exploiting newspapers and giving little or nothing in return, especially since many papers are struggling to find a new revenue model with huge drops in their print circulation.

Let’s back up one more time to look at this issue of copyright. Sometimes you have to wonder if Google and these content producers are speaking the same language when they use that word, especially when Google insists that it respects copyright. Indexing a web page is not copying it. Arguably, caching might be considered copying, though whether that counts as an infringement is still legally debatable.

Even if you would argue that indexing a web page is the same as copying it, there’s another point to consider. Search engines do a job that hardly existed before the Internet, except for librarians. There is no question that they perform a much-needed service – but to do that service, they risk engaging in copyright violations. Has copyright law not kept up with our current needs? Should search engines be exempt from traditional copyright protections?

Google has made a number of arguments pertaining to how it treats copyright. It points out that the users of its service need to click through to read the entire article. This could arguably be called “fair use,” though again that’s a complicated point.

Clearly, Copiepresse and the other plaintiffs want some kind of deal. Google does strike certain deals when it needs to – for example, it came to an agreement with the Associated Press about listing the news agency’s content, for an undisclosed sum. Whether the search engine would be willing to pay for more content remains to be seen.

It’s not unusual for Google to make special publishing arrangements that don’t involve money, by the way; some sites have user subscriptions and are therefore difficult to index, but have content worth indexing (such as Le Monde and the New York Times). If the sites represented as plaintiffs want to negotiate a deal with Google, however, perhaps they should simply remove themselves from the index. They’ll find out whether Google and its users consider their content important enough to include by how quickly the search engine comes around asking for permission to include it.

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