You Can’t Avoid Google’s Search Terms

Michael Hedges December 7, 2009 Follow on Twitter

The information and technology game-changer of the last century has been the internet. But Google has changed the language, if not more. To exist is to be indexed.

To google has come into common verb usage, meaning to look for something on the Web via a search engine. To be googled, the intransitive form, is just around the corner. That would mean having your media or Web-based enterprise squashed like a bug by the giant of search engines.

For all the complaints hurled at Google - News Corporation executives regularly infer that Google’s search function is theft – none seem prepared to let the courts decide. There’s good reason. Copyright and intellectual property law accepts “fair use”, the principle that keeps creativity and invention flowing. Indexing Web content, a search engines’ function, is substantiated by the “fair use” principle.

Mr. Murdoch says he wants to overturn “fair use.”  That, say legal experts, could be a challenge.  The basis for “fair use” comes from early English common law. From there it migrated to the European continent, the United States and beyond. Judges and courts tend not to overturn deep legal precedents. Governments shy away from big changes in international legal structures, even where needed, as seen in recent attempts at copyright and intellectual property treaties. More important in a legal sense will be case law derived from Google’s digitizing ‘orphan’ books.

In general legalese, “fair use” is an acceptable correction for market failure. News and sports reporting just wouldn’t be the same if news organizations were forced to adhere to rules they propose for Google.  While Mr. Murdoch may well be able to “buy” a government or two the body of national and international intellectual property law won’t change quickly.

“The punchline is that copying content to facilitate search functionality is protected by fair use,” writes Center for Internet and Society at Stanford University lecturer Anthony Falzone in his blog. (November 23 read here) “That rule makes good sense. It creates immense social value by making it easier to sort through incomprehensibly vast quantities of information to find what you need in seconds.”

“Nobody,” says Falzone, “is going to be crazy enough to start the doomsday machine Rupert Murdoch says he's ready to start.”

When one legal business owner believes the practices of another unfairly disrupt commerce the dispute can be played out in a courtroom. This is the conventional scenario where rule of law has some common standing. Money and power, far more often than admitted, sufficiently corrupts legal process to keep the rich and powerful in business.

From Google what publishers want – along with every other intermediary between creators and consumers - is fairly transparent. That would be cash, preferably oodles of cash. Indeed some of that cash might trickle down to writers, photographers, journalists, video editors, singers and dancers. If the music industry example is illustrative, the cash bucket empties well before it arrives at the doors marked ‘guitar players’ or ‘authors.’

Newspaper publishers rich enough to travel to Hyderabad, India for their annual convention last week went hyperbolic about Google. “What do we do about Google,” was the most quoted panel discussion. “Do the right thing,” pleaded World Association of Newspapers and News Publishers (WAN-IFRA) President Gavin O’Reilly in his closing speech, entirely directed toward Google. The meaning not lost on anybody: “Please, send us your money.”

What makes publishers, et.al., mad – choose your definition – is the inescapable reordering brought on by consumers switching to the internet as retrieval device of choice using search engines to find whatever it is they want. Search engines are the new intermediaries: Google built a “better mousetrap.”

Just how powerful the Google mousetrap really is has entered – painfully – Rupert Murdoch’s reality. With cost of sales, cost of production, cost of lawyers, cost of compliant governments, cost of boats, jets and mansions soaring and revenue streams unpredictable Murdochian logic says the problem is the damned search engines if not the Web itself. After all, it wasn’t designed – unlike mobile phones - with either built-in cash register or pay-wall.

If Google executives seem smug when confronted by real or virtual criticism it’s because they’ve thought through just about everything critics throw at them. “Please, don’t shoot. I’m unarmed,” said Google Senior VP and chief Legal Officer David Drummond to the assembled newspaper people.  “We acknowledge that so far it has been difficult for newspapers to monetise their online content. But just as there is no single cause of the industry’s current problems, there is no single, or easy, solution.” Team Google may not know how to break levity but they do know the law.

And, too, Mr. Murdoch, who accesses top-notch legal talent, might find the unintended consequences of a legal test even more painful. European copyright and intellectual property law, where the “fair use” principle lives, explicitly protects “moral rights of authors”.  A legal challenge to “fair use” would almost certainly bring into question who, exactly, is the injured party.

Mr. Murdoch said he’s ready to pull HIS content from Google and move it to, well, Microsoft’s Bing. Unless, that is, Google relents and starts making regular and large payments. Earlier in November The Elder said he’d be suing the BBC for “stealing” all that valuable content from his UK tabloids. And, anyway, once Clan Murdoch has the right (literally and figuratively) government in place in the UK they’ll take care of that BBC problem straight away and British citizens will be able to watch it all live on the new Fox News UK.

Almost immediately after Mr. Murdoch’s threat of dissolution, Google announced a new variation on its “First Click Free” program rendering the appearance, if less the reality, of concern. Heavy users accessing more than five pages a day from a specific Website will be lined up against the pay-wall. All Web publishers need to do is sign up; cookies do all the work.

Google’s California mathematicians want peace in the valley. Don Quixote has this thing about windmills. The discussion ends when the search result returns “nothing relevant found.”

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