Google royalty-free content: fair use, or foul play?

$113 billion market cap Google will not remain immune to serious legal and financial threats.
Written by Donna Bogatin, Contributor
“Google aims to obtain, control and own more content, cost-free to Google, for inclusion in its core search product via a no-cost content acquisition strategy through various Google Verticals,” I postulated in “Google Verticals vs. Google.com: What is Google's end-game?”

Google CEO Eric Schmidt extolled the virtues of “financial sharing” in content partnerships during the company’s Q2 investor conference call last month. I present excerpts in “Google CEO on content partnerships: owners to get majority of ad revenues”:

Is it a content partner? Is it a distribution partner? Is it an ad partner? Do they bring in users? What is the economic structure of their industry? But all of them have some form of financial sharing — although maybe not revenue, there may be other ways of doing it — that gets them to where they need to be with respect to their economics, and gets our goals aligned.

Conflicting reports surfaced this week involving the terms of a Google and Associated Press content deal and “Google Speak” on the matter does not provide clarity. CNET quotes Google representative Sonya Boralv in “Google reveals payment deal with AP”:

Google has always believed that content providers and publishers should be fairly compensated for their work so they can continue producing high-quality information. We are always working on new ways to help users find the information they are looking for, and our business agreement with the Associated Press is one example of that.

The license in this agreement provides for new uses of original AP content for features and products we will introduce in the future.

CNET indicates, however:

Financial terms were not disclosed. Consequently, it's unclear whether the deal involves a flat fee or paying AP according to traffic statistics.

On the surface, paying the Associated Press seems to conflict with the stance Google has traditionally taken regarding its Google News service. Because Google News is an aggregator, the company has argued, Google is not obliged to reimburse news outlets for linking to their content. But Wednesday's announcement said the AP content will be the foundation for a new product that will merely complement Google News. Thus Google maintains that the deal supports its original stance on fair use.

In “Judge: Google News lawsuit can proceed,” CNET reports on the ongoing lawsuit against Google brought by Agence France-Presse that alleges Google News violates copyright laws:

Agence France Presse, the world's oldest news agency and the third-largest behind the Associated Press and Reuters, claims Google News unlawfully incorporated AFP photographs, headlines and excerpts from the beginning of articles. Also, AFP argues, Google News removed photo credits and copyright notices in violation of federal law.

For its part, Google claims AFP's headlines are not ‘original and creative’ enough to be protected under copyright law. ‘Typical AFP headlines are factual, simple and contain only one idea--unprotectable as a matter of law,’ Google says.

Agence France Presse is suing Google for $17.5 million.

I indicate in “Google Verticals vs. Google.com: What is Google's end-game?”:

For Google, however, it is merely fulfilling its vaunted mission to ‘organize the world’s information and make it more accessible.’ If pressed for a legal rationale, Google is happy to talk about ‘fair use’ and ‘opt-out.’

Google’s unprecedented profit margins are due, in large part, to its ability, to date, to sell ads against content which it does not pay for.

As the search landscape will undoubtedly evolve in the not too distant future, it is unlikely that content owners will continue to accept dilution of their ownership interests in exchange for “linking” promises.

In “YouTube, Digg, Wikipedia: Can Web 2.0 play hardball? “ I present YouTube copyright controversies:

Fritz Grobe and Stephen Voltz, the not-quite-amateur creators of the video clip viral sensation “Diet Coke and Mentos,” have posted a message at their Website: 'Please do not post our videos on sites like YouTube and Google.'…

zefrank also has posted 'please DO NOT upload these movies to YouTube or any other VID hosting site' and in his July 27 'show'…references the possible 'death of YouTube.'

If under monetized YouTube is the target of “do not post to YouTube” campaigns by content producers, $113 billion market cap Google will undoubtedly not remain immune to serious legal and financial threats.


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