Singularity Law

As many newspapers fold or downsize, companies that make their money from selling content to those newspapers are running into financial problems as well. One of the most visible, and outspoken, of those companies is Associated Press (AP). AP is an American news agency that aggregates stories written by its members and its own staff and distributes those stories for publication by other members. AP has been hit hard by the downturn in the newspaper industry, and blames the Internet for its current situation.

AP Chairman Dean Singleton, who spoke at the AP annual meeting in San Diego several months ago, was quoted as saying: “The news cooperative would work with portals and other partners who properly license content – and would pursue legal and legislative actions against those who don’t. We can no longer stand by and watch others walk off with our work under misguided legal theories.”

The main “misguided legal theory” that Singleton was referring to is the copyright concept of “fair use” — which allows others to quote from, refer to, and otherwise use portions (and in some cases the entire content of) another’s copyrighted work. While AP’s wrath is undoubtedly proper when focused on blogs and other websites that take AP’s news stories in their entirety, Singleton directs most of his anger at Google and other search engines, whom he claims are stealing AP’s copyright content by using its headlines and sometimes short snippets of an article in its search results. He is wrong on many fronts.

First, the technology developed by Google didn’t come free. Tens of millions of dollars have been invested by Google in technologies with no guaranty that they would work, or that anyone would care to use them. Content providers assume, somehow, that the complex platforms that make search engines, etc. work are free, or without risk. Google was willing to take that chance and has, so far, seen a good return on its investment. The newspapers have not been willing to take that risk.

Second, nothing is preventing newspapers (or other content providers) from building competitive platforms to compete with Google. They have chosen not to do so, but instead complain about Google’s willingness to do so. If Google is, as alleged, siphoning off money that should be going to the newspapers, then let the newspapers develop their own, competitive platforms and capture that “lost” revenue themselves. Every website can choose whether to allow search engines to index these site or not. It’s as easy as setting a “switch” in the robot.txt file. If AP, or any of its affiliates believe that Google or other search engines are unfairly exploiting their content by indexing it on their databases, it’s a simple thing to opt out of future indexing.

But to do so would be suicide for these websites, since search engines make their content accessible. Without them no website would be successful (and most would be invisible to users). Yet, Google doesn’t charge anyone for being indexed and made accessible. There is again an enormous cost for Google to continuously update its search engine database to make the most recent articles posted by the newspapers accessible.

Google provides the front end for newspaper websites so that users can find them for free. Snippets are how users find newspaper sites, and are not a substitute for those sites. Without the ability to use snippets in indexing news stories, users would find it difficult to locate the content they want on news sites. The fact that newspapers have not successfully exploited the free accessibility provided by Google is the newspapers’ fault, not Google’s.

Search engines are not AP’s enemy. Without them AP content would be inaccessible, and AP-affiliate websites would be invisible. While these are those who improperly repurpose AP’s content, and AP is well within its rights to stop such activities, AP’s focus on search engines is wrong-headed, and self-defeating.