Legacy News Orgs’ Hatred Of Google Runs So Deep They’re Willing To Give Up Fair Use To Punish Google

We’ve been writing a bit about the JCPA — the Journalism Competition and Preservation Act — the very bad bill from Senator Amy Klobuchar that would create all sorts of problems, from allowing news orgs to demand money for links (breaking the fundamental nature of how the web works), to creating a “must carry” provision that could force disinformation providers into Google News, to an underhanded method of trying to revamp copyright law, without ever admitting its revamping copyright law. We’ve explained all of these problems in previous posts.

Of course, the bill’s momentum was paused last week when Senator Ted Cruz used it as an opportunity to try to force in a “no moderation” rule, though apparently, if Klobuchar can cut a deal with others, it will return to markup tomorrow.

Either way, the main group lobbying for the bill, the News Media Alliance, the organization formerly known as the Newspaper Association of America (which has long been a mouthpiece for Rupert Murdoch’s dreams and wishes) has put out an absolutely bizarre paper attacking Google following the events of last week. I mean, there are plenty of legitimate things to yell at Google about, but the NMA is so focused on this belief that Google owes it money (because Google innovated while the NMA members sat back and watched their monopoly markets disappear out from under them), that it’s willing to undermine the interests of the actual journalists its members employ.

Specifically: the paper is an attack on fair use. This is interesting on multiple levels, starting with the fact that the supporters of the JCPA keep insisting that the JCPA doesn’t touch copyright law (even though it clearly does). But, equally ridiculous, is the fact that journalists rely on fair use all the time. These tired, flailing, legacy news organizations are so obsessed with Google they’re willing to shoot and kill provisions of copyright law that help them the most.

As set forth in this White Paper, many of Google’s current uses of news content likely exceed theboundaries of fair use under the Copyright Act. Given that reality, Google should have tonegotiate an appropriate use-specific license with news publishers for each use of their content.

If they truly believe that, they should sue Google for copyright infringement, not push to get the JCPA passed. But they don’t believe it, because it’s laughable.

In a competitive market, news publishers would be able to resist Google’s demands bywithholding their content unless and until acceptable terms were negotiated. But as set forthbelow, Google has so much power as the dominant online platform, with the ability to play onepublisher off the other, that it has been able to effectively secure acquiescence from the newspublishers for its activities, which often are harmful to publishers. At base, there has been amarket failure in the news publishers’ ability to exercise the rights granted to them under theCopyright Act.

Look, I’ll make this very clear: if you’re relying on Google traffic for your news org, you’ve failed. You’re a bad publisher and you deserve to go out of business. I say that as a publisher that gets only a tiny fraction of our traffic from Google. Instead of relying on Google, we (and other smart news orgs) focus on building loyal audiences. Find your market, and build a community of people who go to you. Google traffic is just a bonus — a chance to convert new readers into long term community members.

But, of course, these old, flailing media organizations don’t know how to do that. They had years where they were actual monopolies: often the only game in town for local news, and they sat, fat and happy, collecting monopoly rents from local advertisers via classified ads.

Then the internet came along and the newspapers refused to innovate. They were still rolling in cash and mocked the internet. Until suddenly each piece of their monopoly got pealed off, bit by bit. And not by Google, but by the internet as a whole. Craigslist, eBay, Amazon, Nextdoor, Facebook, Airbnb, and many others picked off different parts of the old newspaper’s captive audience.

As we’ve said for years, the news business is a community business. And, for years, the newspaper was basically the only “community” offering for many people. But the internet disaggregated communities, and enabled tons of new communities. And, eventually, both users and advertisers realized there were better options — ones that treated them like valued members of a community, rather than looking down on them.

Newspapers could have adapted. Some did. Other publications have adapted as well.

But, many didn’t. And their response is to blame Google — and then jealously insist that a huge portion of Google’s revenue “belongs” to them. The JCPA and this nonsense white paper are both attempts to simply demand a wealth transfer from some of the companies that innovated and provided better tools for communities and advertisers… to those who didn’t.

That it’s being pushed by an organization that is really a mouthpiece for Rupert Murdoch should be a clear condemnation of Murdoch’s years of pretending that he supported the free market and fair competition, and that he was against government interference in the market. The JCPA is literally demanding government interfere in the marketplace, to seize money from successful companies to give it to those companies that didn’t even try to innovate.

The argument is nonsense for many reasons — including the fact that very little Google News screens show any ads at all. It’s not as if Google is raking in the cash. Second, all this does is send news orgs traffic and the fact that they can’t figure out how to monetize that traffic is on them, not Google.

The paper claims otherwise, but this is really a damning statement about themselves:

Google Search is increasingly becoming a “walled garden” — a final destination ratherthan an electronic pointer to news websites. Google has again used its market dominant positionto force acquiescence to new features that diminish the chances that users will visit the newswebsites.

First off, this is bullshit. If you’re talking about news, if whatever snippet Google shows is enough to satisfy readers not to click through then the news you’re providing doesn’t have much value. Good reporting isn’t fully summed up in a headline or a snippet. Those things make you click through.

What the NMA is really admitting here is that its members are shitty journalists who add so little value that no one needs to actually read their articles beyond the headline and a short snippet. What a bizarre thing to admit.

What’s hilarious is that on the very same page that it has that statement above about “walled gardens” the paper admits the exact opposite is true.

Google’s use of news publishers’ content does send substantial traffic to news publishers, butGoogle is not fairly or appropriately compensating news publishers for the value of theirmaterial, or properly treating the news industry as an important strategic partner. Instead, as setforth in this White Paper, Google has misused its position as the dominant online platform to reap the benefits of the news media’s substantial investments in reporting without paying alicense fee.

Who could possibly take this paper seriously when they’re admitting that their claims of the walled garden are full of shit.

On top of that, again, you don’t need a license to link. You just don’t. So this demand for “a license fee” makes no sense.

The paper’s attack on fair use is also quite troubling. It specifically insists that a seminal fair use decision, Google’s big win against Perfect 10, should no longer be considered good law.

What considerations led the Perfect 10 court to hold in 2007 that Google’s use of thumbnailphotographs in its search engine was fair? First, Google’s search engine was not seen as anultimate destination or publisher, but as merely as a tool or “pointer” providing direct access tothe original website containing the original copyrighted material – and hence a “transformative”use. This was in keeping with Larry Page’s vision at the time; as he told an interviewer in 2004,“We want to get you out of Google and to the right place as fast as possible.”3 Second, the courtdid not see Google as heavily commercial. AdWords was still relatively nascent, and courts hadyet to fully appreciate the significance of search advertising. Further, the low-quality, grainythumbnail images in Google search results at that time were not viewed as a substitute for theoriginal image and had no independent aesthetic appeal. Critically, the court also did notperceive a search engine as creating any market harm for the original publisher. Finally, thecourt viewed Google’s indexing of the plaintiff’s images as “incidental” and found that Googlewas acting in keeping with principles of good faith and fair dealing. At the core of its reasoning,the court concluded that the goal of the Copyright Act was to incentivize the progress of scienceand the arts, and that the public benefits of the search engine outweighed any minimal impact ofthe use on the original website’s incentive to create.

Basically, all of that is wrong. Again, just a page earlier, this very paper admitted that Google sends substantial traffic to publishers. So, the first point still holds. The second point still holds for news as well. Google has no ads on Google News, and it is not a key part of Google’s commercial interests. And, third, the public benefit of being able to find news stories still stands.

And, again, more importantly, if the NMA and its members really believe this, go test it in court. Put up or shut up.

It’s amazing how much of this paper is a self own of just how bad the NMA members are at their jobs. I mean, this is the example they show of how Google News makes sure people don’t click through to news orgs’ actual stories:

That’s showing just a tiny snippet from seven different news orgs, but none of them tell anything even remotely close to a full story. If I saw that, I’d click through to find out the details.

I mean, it seems like what the NMA is really complaining about here is the fact that news consumers get to see multiple news orgs‘ version of the story, rather than being shunted to just one monopolistic local provider.

So sad, NMA, your members have to compete with each other. Boo fucking hoo.

And, again, the NMA’s own paper immediately admits that its concerns about the walled garden are bogus:

By the time the user views the full collection of articles in the “carousel” format, the user oftenknows the high points of the news story. Although some news publishers get decent traffic fromthe Google News app, in the view of many in the news industry the Google News app — with its aggregation of content by topic, combined with high-quality photos, headlines, and snippets in“carousels” — can satisfy the reader about the “news of the day” without ever having to clickthrough on any given story

Hey, NMA, maybe, rather than just demanding money from Google, you should talk to the news publishers who get “decent traffic from the Google News app” and figure out how they do it, rather than listening to the lazy ass publishers who provide so little value that the headline and snippet alone “can satisfy the reader about the ‘news of the day.'”

Anyway, the paper goes on and on, and makes clear two things over and over again:

NMA news orgs are shit at their jobs. They refuse to innovate. They refuse to try to build real community. They rely on Google for too much traffic rather than doing anything to build a loyal audience. They can’t figure out how to add enough value to the actual news that people care beyond the headline and a snippet.

Honestly, given all that, it seems like some of those news orgs should go out of business and clear space for organizations that actually serve a community.

Second: for all the many claims that the JCPA is not about copyright at all, this paper reveals that the NMA absolutely believes it’s about copyright. But, rather than test its laughable fair use theories in court, it’s convinced Amy Klobuchar to do an end run around copyright law, insisting that the JCPA has nothing to do with copyright, while still demanding licenses. Licenses are about copyright. Because fair use means you don’t need a license. That’s kind of fundamental.

Third: despite how much the NMA’s members all heavily rely on fair use themselves, they’re willing to burn it all down if it means that Congress will force Google to throw some spare change at them. It’s just sad.

This whole document is fairly pathetic. I mean, look, if I were running the NMA and my members were as pathetic as the NMA’s members apparently are, I guess I’d probably demand cash from Google too. But it doesn’t make it a good idea.

A smart NMA would be helping its members innovate. But, that would require actually doing work, and that’s not Rupert Murdoch’s style.