Google may be winning battles with publishers, but it is losing the war

Google is clearly trying hard to portray a new German law involving the republishing of news as a victory, and some observers seem to agree, saying the company “defeated” publishers who wanted it to pay for the right to publish excerpts. But if you look more closely, this is not an obvious win for the search giant — just as recent deals with French publishers and Belgian publishers were a lot closer to being a saw-off for both sides than an outright win.

And with every deal it strikes, Google makes it harder to argue that paying publishers for excerpts is unnecessary and even counter-productive — or that there is something to be gained by allowing even large companies to engage in the “fair use” of content for the larger good.

As my colleague David Meyer has reported, Germany’s lower level of government, the Bundestag, passed a bill on Friday known colloquially as the “Google Law.” It doesn’t officially become legislation until it is approved by the second chamber, the Bundesrat, but it has already caused a firestorm of criticism — much of that stoked by Google and its “Defend Your Internet” campaign. The law was promoted by most of Germany’s major media companies, who believe Google News is stealing their content by including excerpts of news stories.

Is it a victory for Google? Not really

In its original form, the bill would have required Google and others who use even a single word of a publisher’s copyrighted content to pay for the privilege. After what appears to have much lobbying and late-night pressure from the search company, the German legislature tweaked the bill so that the use of a single word or a “small snippet” by services such as Google News would not require licensing or payment — which Google says is a victory.

As David notes, however, on closer inspection this doesn’t really look like much of a victory at all: it’s not clear that Google News has been absolved of anything, in fact, since the wording of the bill doesn’t specify what a “small snippet” consists of. The legislation also clearly gives publishers the right to control what a third-party site or service does with their content, and in effect it leaves it up to them to determine what constitutes unfair use.

Germanys Bundestag just said goodbye to modern digital society with a lobby made law from day-before-yesterday's times. #lsr

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anke domscheit-berg (@anked) March 01, 2013

In a similar way, Google tried to argue that its deal with French publishers — which involved the payment of $ 82 million to set up a “digital innovation fund,” as well as a commitment by Google to help publishers with their digital advertising — was a victory, when what it really looks like is hush money or an extortion payment. As in Germany, the search giant might protest that it could have been much worse, but to other publishers and media players in Europe it looks a lot like Google is willing to cave in on its core beliefs if you push hard enough.

Has Google lost the will to fight?

Some publishers — even those in the United States — would probably argue that this is a good trend rather than a bad one, and that Google should be paying publishers for their content, even short excerpts (I happen to believe that they are wrong). And Google has obvious corporate reasons for being expedient and cutting deals, even if that involves backing down on its principles, because it needs to do business in these countries.

While Germany's new ancillary copyright is confusing, I am worried more about how much social capital the publishers have lost in this.#lsr

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Wolfgang Blau (@wblau) March 01, 2013

Despite all that, however, it still feels as though something has been lost, or is in the process of being lost. In the past, Google’s argument in cases like these — or other cases on similar issues, such as the Google Books lawsuits launched by publishers and authors — has always been that a) the principle of “fair use” should allow it to use short excerpts of both books and news articles, and b) that there is an exchange of value involving the users that Google News drives to a publisher’s content that many media companies fail to appreciate.

Of course, the U.S. principle of “fair use” doesn’t exist in the same way in most European countries. And perhaps it’s unfair to expect Google to try and somehow force other jurisdictions to see the value of such a principle. But if Google doesn’t do it, then who will? So much of its success has been based on it that it seems a little churlish to just cut a deal with whoever comes along, regardless of the long-term effects that might have on the open web.

Post and thumbnail images courtesy of Shutterstock / Alexander Santander and Flickr user Pew Center