Microsoft Tried To Cozy Up To Newspaper Publishers… Who Are Now Claiming Microsoft Is Trying To Stiff Them
from the they'll-always-want-more dept
A few months after the snippet tax was agreed to as part of the EU Copyright Directive, Australia indicated it wanted to take the same route. The government there planned to make Internet companies pay newspapers for sending the latter extra traffic, by imposing something called the News Media Bargaining Code. In a blog post from December 2020, Mel Silva, VP, Google Australia & New Zealand, gave a good analysis of why Australia’s proposed Code was antithetical to the way the Web worked, including the following:
It forces Google to pay to show links in an unprecedented intervention that would fundamentally break how search engines work. No website and no search engine pays to connect people to other websites, yet the Code would force Google to include and pay for links to news websites in the search results you see. This sets the groundwork to unravel the key principles of the open internet people use every day—something neither a search engine nor anyone who enjoys the benefits of the free and open web should accept.
A few weeks later, Google turned up the pressure, and threatened to make its search engine unavailable in Australia if the News Media Bargaining Code went ahead. At this point, Microsoft sensed an opportunity to make life harder for its rival in the online search market. Microsoft’s President, Brad Smith, published the following post of his own, stating that in contrast to Google:
Microsoft fully supports the News Media Bargaining Code. The code reasonably attempts to address the bargaining power imbalance between digital platforms and Australian news businesses. It also recognises the important role search plays, not only to consumers but to the thousands of Australian small businesses that rely on search and advertising technology to fund and support their organisations. While Microsoft is not subject to the legislation currently pending, we’d be willing to live by these rules if the government designates us.
The reason why Microsoft was happy to throw the entire Web under a bus became clear later in the post:
Microsoft will ensure that small businesses who wish to transfer their advertising to Bing can do so simply and with no transfer costs. We recognise the important role search advertising plays to the more than two million small businesses in Australia.
We will invest further to ensure Bing is comparable to our competitors and we remind people that they can help, with every search Bing gets better at finding what you are looking for.
Bing is Microsoft’s largely forgotten search engine. In the desperate hope that making things difficult for Google might encourage a couple of people to switch to Bing, Microsoft decided to cozy up to the newspaper industry that was hell-bent on undermining the Web. A few weeks after Smith’s blog post, Microsoft joined with European newspaper publishers to call for the Web to be weakened there too.
Given that cynical attempt to use bad legislation to attack its rivals, it is gratifying to see that Microsoft’s plan of working with newspaper publishers isn’t going so well, as reported here by the Frankfurter Allgemeine Zeitung (translation via DeepL):
The collecting society Corint Media wants to enforce the demands of press publishers for the ancillary copyright against Microsoft in court. The company announced in Berlin on Friday [1 April 2022] that the step had been taken “after more than two years of talks without an acceptable result on an appropriate remuneration.”
Apparently, Microsoft had offered 700,000 euros for its 2022 use of newspaper material in the Bing search engine and MSN.com. The publishers, however, demanded 20 million euros. Microsoft had obviously forgotten that, as far as the copyright industry is concerned, coziness counts for nothing, and that enough is never enough.
Follow me @glynmoody on Twitter, Diaspora, or Mastodon. Originally published on Walled Culture.
Filed Under: aggregators, bing, eu, germany, link tax, search
Companies: corint media, microsoft
Comments on “Microsoft Tried To Cozy Up To Newspaper Publishers… Who Are Now Claiming Microsoft Is Trying To Stiff Them”
What a surprise...
Microsoft: I never thought the leopards would eat my face!
Funny way of showing it
By punishing search for playing that role.
Seriously the leap of logic that has to happen to make anyone think this statement and this law match up at all just blows my mind.
Re:
It is the syllogism of thieves. You have it. I want it. Therefore you clearly stole it from me and I am justified in taking it “back”.
Murdoch?
For a person from Australia, he Owns and controls allot.
There are a few Major Corps for international news, but he tends to be the Big one.
Re:
The News Media Bargaining Code was basically created by the toady and sycophantic LNP to keep Rupert happy.
They knew better
Reminds me of Microsoft taking Epic’s side in Epiv v Apple. Microsoft has the attorneys to know better and that these policies will come around to bite them.
Simply showing a link to a newspaper website should be free to all search engines, asking for payments for a link and a snippet breaks the internet ,newspapers can set up paywalls or allow limited acess to the public if they wish
coziness counts for nothing,
and enough is never enough. https://www.youtube.com/watch?v=2xcYLVdfFro
two stories in one day?!
first i read microsoft want to help insert ads into XBOX games and now this? what the hell is going on over there?
The weird thing with this is that the Microsoft News section of Bing actually copies the articles and loads them up via msn.com, unlike Google News which sends you direct to the news site that has the story.
So it’s no surprise the news publishers want payment from Microsoft as they are doing the exact thing they accuse Google of doing.
It’s clear the legacy media hate the internet & have been pushing back against Silicon Valley. Governments still think newspapers are relevant & have been receptive to the techlash. This is why there has been all this hostile legislation towards tech giants. Silicon Valley isn’t perfect but social media allows the participation of ordinary people in a way newspapers don’t But governments seem happy to throw users under the bus. Hopefully the next wave of innovation will involve the complete bypassing of existing gatekeepers (even eliminating ISPs, e.g. through meat networks).
They,ll make an agreement with some large publishers which will ignore small local news outlets, they should be lobbying to keep the internet free and open, while the
legacy media companys continue, to donate to any politican who will pass the next sopa, or a framework that will force media websites to filter all user video,audio uploads, they are looking at the eu, which is still trying to bring in mandatory filters for all user content, of course the legacy media companys wont even spend money to make a database of video content .id like to see bing just provide a list of news publishers for 1 week eg nytimes.com digg.com etc and just say we are not allowed to link to news
storys
People and organizations will go to some pretty extreme lengths just to tell Google to go fuck themselves. Even if it means machinegunning their own foot into smithereens.
Far from forgotten
Bing is the first SE I go to. It’s results tend to be better (for me at least).
And it still has working search modifier code instructions.
Hundreds of millions of users depend on it daily. It’s far from forgotten even if it is a distance from the largest used one.
On copyrght?
At beginning, there was strict rules for everyone to follow copyright. How it worked was that platform had responsibility to ensure that no copyrighted material existed in their web page.
This all changed when youtube decided to collect licenses from the market without paying anything for the pleasure and allowing pirates to upload anything they wanted to the service. Supposedly these copyrights couldn’t be checked simply because they wanted users to feel in control, and thus their deadline for publish operation was less than 2 seconds. Thus no proper copyright checking was possible within the deadline.
Search engines created by google used slightly different tactic. Instead of filtering out copyrighted material, their spiders collected large database of copyrighted material, but only published selected pieces, i.e. the title of the page and links to the actual content. They figured out that if the amount of content copied per site was small, the authors of the content wouldn’t be bothered by the blatant copyright infringement happening in the site.
Eventually they managed to get laws twisted to their position, with introduction of DCMA legislation which removed copyright liability from the platfoms.
Now newspaper publishers are calling the bluff. They worked hard to create these snippets that youtube and search engines are publishing and they want the blatant copyright infringement to stop. Thus they called their legal representatives and let them craft laws where google is going to pay for the content they’re publishing in their web site. I.e. the wheel turns back to the original situation where platforms are required to ensure that no copyrighted material exist in their web sites.
Re:
No, they don’t. If that were what they wanted, they would set up a robots.txt file and Google would stop indexing their site. What they want is to force Google to keep showing links and snippets and also force them to pay for it.
Re: Re: kill google...
This doesn’t help with the blatant copyright infringement. Google would still benefit from large scale copyright infringement, even if one site was removed from the index. The purpose of copyright lawsuits is always to stop the whole activity, this way legal entities do not need to compete against illegal vendors. Robots.txt do not cure google’s large scale copyright infringement one bit. All illegal activity need to stop, not just against one site.
Re: Re: Re:
Even if I accepted that Google’s activity is illegal, which I don’t, your claim still isn’t correct. Only the activity that a copyright holder objects to needs to stop. Rightholder A has no right to make anyone stop infringing Rightholder B’s copyrights. If Rightholder B doesn’t object, then that’s the end of it. Nobody else has standing. Since any or all of these rightholders could prevent any infringing activity (related to their own copyrights, which is all they have authority over) but don’t, we must conclude that they do not object to it.
Or you might claim that the newspapers don’t believe that robots.txt is enough, and that Google must be sued to make them stop infringing. They haven’t done this either! So on what basis could we possibly conclude that copyright infringement is their concern, and not money?
Re: Re: Re:2
This isn’t true. If one copyright holder can find infringement from google’s system, then there’s no reason to assume that other copyright holder’s are not in the same position and are currently considering sueing google. For legal efficiency reasons, when one copyright owner calls the bluff, the situation should be fixed for all copyright owners. If google wants to avoid this outcome, they should provide paperwork which explains how they received either copyright assignments from original authors, or they should show the license paperwork, so that courts can evaluate if they genuinely tried to avoid copyright infringement, or if their activities were willfully committing copyright infringements.
Given that google is unable to provide this paperwork, their burden of proof for “license” -part fails as a matter of law. And the situation needs to be fixed with permanent injunction that prevents google from executing the actions they have been doing.
Re: Re: Re:3
You can believe that if you want, but it isn’t how copyright law works, at least not in the US. Maybe Canada allows copyright holders to enforce others’ copyrights, but I would need to see a reference before believing that. Do you have such a reference?
You’re ignoring the third possibility: fair dealing (called fair use in the US).
https://fair-dealing.ca/what-is-fair-dealing/
Then why do you suppose the newspapers are not seeking such an injunction?
Re: Re: Re:4
Fair use fails because the overall amount of infringement is at scale of terabytes, so even if one copyright owner does not suffer large damages, the overall scale of the infringement is larger than what is allowed via fair use. Basically our position is that fair use applies only to snippets with size of 5 words or less, and infringement of kilobytes, much less gigabytes or terabytes is not in the possible scope of the fair use legislation.
Google’s fair use defense fails because the overall scale of the infringement is larger than what framers of copyright considered fair.
Re: Re: Re:5
Based on what? This is absolutely incorrect in the context of US law but I’m not familiar with Canadian law. So how did you come to the conclusion that only 5 words is allowed?
Are you going to answer the other questions?
Re: Re: Re:6
This is the limit where copyrighted work becomes unique enough that the original source of the data can be recognized from other copyrighted works simply by looking at the data itself.
Re: Re: Re:7
That’s just restating your opinion. You made a claim about the application of law. If you want to be taken seriously, you need to back that claim up with a citation. For example, a link to a Canadian copyright statute that states a 5 word limit. Or a Canadian court case that found a usage didn’t fall under fair dealing because it was more than 5 words. Or even an explanation from a Canadian copyright attorney. Just stating again that you think it should be 5 words doesn’t cut it.
Are you going to answer the other questions?
Re: Re: Re:8
It’s not 3rd party that does the enforcing. It’s the court that imposes permanent injunctions, and courts are well within their scope to consider the google’s full operation. The courts do not need to restrict themselves to the current plaintiff’s identity when considering actions against defendants.
They think that getting the law changed is better alternative first. Proving necessary elements for a legal action to succeed is significant burden and newspapers are not willing to take the risk that large company like google will be able to prevail in the legal splatter. Instead they’re changing the laws to make absolutely clear that money must flow when copyrighted works are being used commercially is their chosen strategy.
Re: Re: Re:8
Wikipedia says in https://en.wikipedia.org/wiki/Substantial_similarity
“Courts have relied on several factors to aid in a striking similarity analysis. Among these are:”
“Uniqueness, intricacy, or complexity of the similar sections.”
“If the plaintiff’s work contains an unexpected or idiosyncratic element that is repeated in the alleged infringing work.”
“The appearance of the same errors or mistakes in both works.”
“Fictitious entries placed by the plaintiff that appear in the defendant’s work. For example, fake names or places are often inserted in factual works like maps or directories to serve as proof of copying in a later infringement case since their appearance in a defendant’s work cannot be explained away by innocent causes.”
“Obvious or crude attempts to give the appearance of dissimilarity.”
Re: Re: Re:7
I’ll clarify this slightly more.
Snippets smaller than 5 words need to fall into fair use, simply because it’s not possible to recognize from the data itself, who is the original author of the material. Owner of the copyright is always problematic, and snippets smaller than 5 words this uncertainty cannot be cured. For courts to be completely impossible to conclusively determine that who is the owner of the copyright is what makes snippets smaller than 5 words fall into fair use.
So the reason why you think courts are unable to conclusively determine the correct outcome is what is required to get fair use passed.
When the material is larger than 5 words, courts are definitely able to determine for example with substantial similarity test whether the copyrighted works come from the same source work. The uncertainty about copying is removed and fair use defense fails.
Re: Re: Re:8
Notice I used caselaw (below) for reference. By case number where o could find it.
Re: Re: Re:8
This proves you have not the slightest clue what fair use / fair dealing is. You didn’t read the article I linked explaining it, did you?
Re: Re: Re:3
ignoring that linking is not infringement and that the snippets are fair use…->
Problem: not all agree with one another.
Flip the choice of copyright holder to, say, myself. I release everything I do as IDGAF and would never file against someone for using my work.
Since I believe that everyone else must believe that too?
In the US work is considered copyrighted on creation. Licensing is simply a notice of what the holder of CR will and will not peruse. Be it GPL or Creative Commons or public domain or whatever. Beer licensing, coffee code, …! All these exist because holders don’t agree with each other on HOW to handle CR.
Re: Re: Re:4
Courts do not need to separately ask each individual what they think about google’s activities, when google is unable to provide paperwork that proofs their activity is within the law.
Re: Re: Re:5
First in the IS you’re innocent until proven guilty.
Second in the US linking is not a crime.
Third in the US (and in compliance with Berne, so all BC signatories) referential text use as descriptionary content is fair use.
Your going to find it hard to fault Google here legally.
508 F.3d 1146 makes it quite clear thumbnailing is legal.
When combined with 1:10-cv-04134 in cases since, eg Majestic vs PornHub, embedding of content from another site is also not infringing.
So when seeing what google is actually doing here:
They scrape (crawl) a site.
They hash index that content.
They show a link to that site.
They show a short descriptive section of that location’s text matching the search.
In some cases, eg news, previously also feed, they embed a cross-site frame.
Since scraping is considered legal under the restrictive texts agreements (robots, crawl, scripts, feed, etc) unless specifically disallowed: the scrap and hash is legal.
Without full link TM application, W3C processes require the public distribution of public publication. (More accurately disallow disallowing). So listing links are legal by contract.
Text clips (eg snippets) are fair use.
And cross-site embedding is legal.
As per extensive case law there is nothing illegal (under US law) that google is doing here.
Re: Re: Re:6
Your general thrust is correct, but
Re: Re: Re:7
I think I had the wrong article in mind when writing some of these comments. This is a European case, not Canadian. I was thinking of the story about the Canadian plan for a link tax. Sorry if I caused confusion.
Re: Re: Re:6
Problem here is that plaintiff in this case have already proven elements of copyright infringement, i.e. ownership of copyright and copying of the protected elements.
Once this proof exist, the burden of proof moves to the defendant and he has to prove that he has license to the material.
Re: Re: Re:7
No, there is no proof of infringement. What is displayed is a claim of infringement that very much would generally fall into fair use. Canada may have stricter laws. But that doesn’t change the US law or the Irish law, depending on which aspect of google the case would be against.
Re: Re: Re:8
The proof consist of the following elements:
1) google search displays content (titles, url links etc) that their web spiders are extracting from copyrighted works
2) the content is owned by the entity that google spider happened to bump into when extracting data from other people’s web services.
These two elements are the only thing required for the copyright infringement finding.
Re: Re: Re:9
1) your posted “content” (links titles etc) is completely protected under Berne.
Even in non-signatory states the redisplay of links and page titles is protected under W3C rules. Which every site host agrees to and which is by subsequent agreement, agreed to by the entity creating a public facing web page using a name.location format.
2) only if the site doesn’t utilise text restrictions. Via text file restrictions. Google’s crawlers respect ALL properly formed text restriction files.
It really is that simple. If a company does not want their materials crawled by entities that operate legally they simply create a robots file that says so.
Re: Re: Re:10
the copyright analysis of web pages is done per-page basis, each page having separate authors. W3C rules only asks permission for web browsers and related technologies to display the content in the same page. Moving the content items to different page is not allowed. And this is what google search is doing.
basically the web isn’t area where unlimited copy-paste of content is allowed. Instead, the web works under existing legal framework where copyright issues need to be considered before publishing material to the web.
Re: Re: Re:11
Exactly. And unless the country in which this is filed happens to be one of the 17 recognised or 22 unrecognised states that are not part of the Berne agreements, Google operates completely within the boundaries of fair use.
It’s obvious you believe Berne too open. I personally think it’s too restrictive. And that’s not the point.
Under treaty, which forms international law, Google is not violating Berne copyright.
Ultimately this is going to wind up with an EU tax vs Berne agreement showdown and the snippet pseudo ‘law’ is going to be decimated. Mainly because EU law doesn’t override international consensus. The union can not invalidate pre-existing treaties outright. It is up to the state to revalidate such issues.
The EU as a whole is not going to make this a showdown issue when a growing number of member states are questioning membership.
One of two things will happen here. The section of law will be repealed and jettisoned… or,
It faces Annihilation!
The UK left!
Greece, Hungry, Austria, the CR, Sweden, Finland, and Bulgaria have all questioned membership publicly.
Belgium, a founder, has called it overprotectionist.
Hungry and Bulgaria have both played with UK style exit referendums in non-binding capacities.
Just how well is this issue working out in Canada and Australia?
Both W3C and ICANN oppose such stances.
Ireland always has and always will follow it’s own rules, fuck you.
The South Atlantic islands don’t give two fucks!
And the US, well, Don’t Tread On Me.
Even if somebody somewhere made this stick somehow, do you think for a second it will actually see transfer of money? ROTFLMAO!!!! 🤣 😂
These mega corps will simply disconnect your local level access before they turn over cash. No more .ca or .au or .whatever page.
Btw: if you think Ireland is interested in the EU if push comes to shove? They’re one of the top 4 largest pass through banking states in the world and make a good lot from that. Watch how fast they break off.
Re: Re: Re:12
Fair use is only considered after the actual catastrophy happened. I.e. Courts only consider fair use after plaintiff has already proven defendant violated copyright. Courts simply refuse to consider fair use until plaintiff has provided their proof of why defendant violated copyright. This means that finding of copyright infringement must be first done before fair use can be considered.
This means that entities who do not want to commit copyright infringement cannot rely of fair use to save their ass in copyright lawsuit.
Thus you cannot consider fair use as a permission to do copyright infringement. Copyright infringement needs to avoided recardless of whether you’re going to rely on fair use as your defense.
This is why google is not able to wave fair use flag and willfully commit copyright infringement simply because they consider using fair use as a defense.
Re: Re: Re:13
Again: you miss the point.
Any national or international law gives way to binding agreements between parties. Be it the NYT, the star, or the Sun. Even Dipshitsunited.
By creating a http://www.name.location url with a contractor, you agreed to standards rather than legal precedent.
You gave up your personal (corporate, straw man) rights to the party you signed with. Who will do as they please within the confines of the law.
It doesn’t matter what you think. You waived your rights.
Big Boy Stay Puff Ever Fluff, excuse me I’m drunk and horny.
By creating a dot 3 or dot 2 dot 3 site you gave up your representation.
Move along now.
Keep searching for the droid that will help. FWIW, that droid is long scrapped
Re: Re: Re:14
these aren’t the droids you’re looking for,
Re: Re: Re:15
Damn, you weren’t content with ripping off Scott Cawthon—now you’re ripping off Disney.
I mean, you do know that quoting a movie is, under the most stringent of technicalities, infringing upon the copyrights on that movie, right? And since you’re a fan of copyright maximalism with no space for Fair Use/Dealing… 👀
Re: Re: Re:16
He even used more than five words.
Re: Re: Re:16
What’s funny is that somewhere in my stupor I pulled the idea out to bait.
He took it. Time to reel in the big fish.
In doing so his argument completely falls apart.
Re: Re: Re:16
So you had no trouble detecting that this quote comes from star wars movie. This proves my point that 5 word limit is where the legal border needs to be. Anything bigger than 5 words is immediately recognizable and can be identified. This means that copyright can be attached to the snippet and thus publishing those snippets is dangerous. You also were immediately trying to blame copyright infringement to me when I posted the quote, so this proves that internet also thinks that copyright on bigger than 5 word limit is serious business. Now I just need to setup operation to start collecting money from my copyright of small 6 word snippets.
Re: Re: Re:17
I am not the entirety of the Internet and you still ripped off Scott Cawthon, bro.
Re: Re: Re:18
Bad attitude coming from you means internet is not free of such horror.
Re: Re: Re:19
I don’t affect the whole Internet and you still ripped off Scott Cawthon.
Re: Re: Re:15
That is more than 5 words, therefore according to your rules you have committed copyright infringement.
That limit on quoting would kill human condensation and culture.
Re: Re: Re:16
I didn’t publish the quote with more than 5 words. It was techdirt that did all the evil publishing stuff.
Re: Re: Re:17
Have you been trolling this whole time, or just with this comment?
Re: Re: Re:18
I’m like a professional master troll, so what do you think is the main activity for such trolls?
Re: Re: Re:19
Well I have to give you credit, I thought you were just dumb.
Re: Re: Re:20
I also thought the whole site if full of criminals.
Re: Re: Re:19
Ripping off Scott Cawthon?
Re: Re: Re:13
Fair use is a defense to a claim of copyright infringement. If a use is fair, then it isn’t infringing. You really need to look up what fair use and isn’t because your “explanation” of it is a confused mess. The only thing you got right is that it only comes into play in a copyright lawsuit, which makes it difficult to rely on if you’re not rich. Which, by the way, Google is, so they will have no trouble defending themselves with a fair use claim.
Re: Re: Re:14
It quite. Fair use is baked into Berne to prevent such cases from occurring.
That companies bring cases anyway shows just how greedy and disingenuous they really are.