Newspaper Industry Lawyers Attack Fair Use, Claim Google Is Illegal

from the and-so-it-begins dept

Hmm. So, on Monday Rupert Murdoch suggests that the courts would reject fair use as a concept, and by Friday two newspaper industry lawyers just happen to have an op-ed piece in the Wall Street Journal explaining how Google violates copyright law by caching the websites it indexes. If the names of the lawyers -- Bruce W. Sanford and Bruce D. Brown -- sound vaguely familiar, that's because they're the same two lawyers who, six months ago, wrote a laughably ridiculous editorial (that time for the Washington Post) proposing special new copyright laws to save newspapers, while destroying pretty much everything that makes the internet useful. Of course, both the Washington Post and the WSJ conveniently left out the fact that these two lawyers regularly represent newspapers and other media and entertainment firms -- even as that seems rather relevant (what happened to those FTC disclosure laws?).

While I do actually agree with the lawyers that it's a shame the focus on the Google Book Search settlement avoided the big fair use question, I think they're entirely wrong to suggest that Google itself violates copyright law.
The copyright code allows public libraries to copy texts as long as there is no "direct or indirect commercial advantage." But that does not describe what search engines do. They use the complete copies they take for free to sell the advertising that has made them enormously profitable. This has a direct impact on book publishers, and on the publishers of magazines and newspapers that are losing the advertising that once supported them. According to Ken Auletta's recently released book "Googled," its search business alone now takes in 40% of all advertising across the Internet.
Perhaps Sanford and Brown are unfamiliar with basic copyright law, but the commercial advantage issue is only a small part of copyright law, and there are plenty of well-established cases of fair use in commercial use. In fact, I'd suggest that they consult the very media companies they work for, as most of them regularly rely on fair use defenses for reprinting or broadcasting content -- despite the fact that they're very commercial entities.

Furthermore, it appears that Sanford and Brown are either unfamiliar with how Google works -- or are purposely misrepresenting it. In the case of most news stories, Google has little or no ads. It only recently put ads on Google News -- long after the decline in ad revenue for newspapers. Besides, if local advertisers are finding a better return by advertising on Google, isn't that a good thing? That's called competition, and I'm surprised these lawyers would be against that.
In the last year, many fresh ideas have begun to circulate on how to help the publishing industry transition profitably to the online world. But without legal reform to back up these new business models, publishers will not have the bargaining power to make the search engines into true partners willing to compensate them meaningfully for their copyrights.
Yes, proposals like the ones that you guys suggested in the Washington Post without disclosing who pays your bills? Funny how that works. And those proposals are not about "helping the publishing industry transition profitably." Plenty of smart publishers are perfectly profitable. The proposals are about protecting the status quo and hurting the innovators who better serve the market. Sanford and Baker are trying to protect their big clients, but they'd be better off telling them to innovate, rather than push bogus editorials and pass ridiculous laws designed to hold back progress.

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  1. identicon
    Errr - What?, 14 Nov 2009 @ 12:59pm

    Re: You're all misunderstanding Murdoch's strategy

    "Murdoch is aiming to get legislation in place that will force Google and other search engines to pay for Indexing Rights."

    There are so many things wrong with this - it will never fly. I would, no doubt kill the internet as we know it today.

    But even if it did, who would care? I do not need any of news corp products, and honestly I try to avoid them when I am aware of it.

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