Google’s efforts to catalog the world’s knowledge first appeared premised on fair use absolutism:
–They weren’t going to negotiate with the publishers;
–They’ve (so far successfully) told website owners like Blake in Nevada to buzz off when they complained about unauthorized indexing;
–And they’ve resisted AFP’s insistence that the headlines indexed in Google news are copyrightable works.
But Google recently has been “making nice” with some big content owners. They’ve licensed feeds from AP. According to a Wall St. Journal article from a few days ago, they’re in serious negotiations to license a wide range of video content from the networks and cable companies. And whatever the technical merits of a searchable music database, Google apparently has no current inclination to index the world’s music.
What gives here? Well, part of Google’s flight from copyright battles over audio and audiovisual works must stem from inconsistent legal treatment of different works. It’s almost impossible to imagine a court in a “text case” uttering the Bridgeport court’s famous dictum: “Get a license or do not sample.” (In fact, it has only a centuries-old analog: get permission from the king or do not publish). But I think it’s also part of a business strategy that’s very smart for the big players: establish precedents with licensing fees that will eventually make it impossible for smaller competitors to enter these search spaces.
I have no idea how this will all play out. But I am happy to see that many governments are getting into the search engine game. I would be worried if the major search engines ended up being “arms” of the content companies they searched, rather like Apple iTunes appears in many ways “captured” by the Big 4 which comprise its main source of content. In such cases, oligopsony may just entrench oligopoly down the line, a precedent observed by some in health economics.
The ‘smart moves for big players’ is one explanation, Frank – but isn’t another issue here the fact that most countries in the world do not have fair use? The more international the business becomes, I would think the more this does become an issue. Google has been sued overseas; and it does, after all, have offshoots in many countries, such as Australia or the UK, which don’t have fair use; Australia has, thanks to the FTA with the US, DMCA-like safe harbours but they’re probably not enough). I don’t know, but I’m just wondering whether that’s a factor. Leads to an interesting unvirtuous circle, though, does it – licenses are necessary for the big businesses that have overseas interests, but the existence of a licensing norm then impacts within the US on the fair use analysis for the smaller businesses … very interesting …
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