Digital Directions: The Google Settlement
It has been several months since Google’s preliminary out-of-court settlement with the Association of American Publishers (AAP) and the Authors Guild regarding Google Book Search, and the dust has yet to settle. The agreement’s true impact will only become apparent over time, as its terms are put into practice. The devil will be in the details of execution. This is a watershed event nonetheless and marks the beginning of a new era in content distribution. A few themes have emerged that will characterize this next phase.
A Scalable Framework
The settlement allows Google to digitize books in libraries in toto, without prior clearance, and enable the discovery of books on the Web by making books’ content accessible to search. This is a good thing: Discovery is the first step in distributing and selling a book. In the Book Search program, a rights holder has the ability to opt out and remove his works from
In a statement announcing the settlement, AAP Chairman Richard Sarnoff referred to the agreement as “an innovative framework for the use of copyrighted material in a rapidly digitizing world.” One area of such innovation is the scalable nature of this approach to digital content distribution.
Prior to this settlement, in order for a book to be discovered and delivered digitally, a publisher would have to include the specific title in a specific digital distribution program with a specific distributor or digital channel partner. This is a pretty slow way to go.
Assuming the rights holder does not opt out, the books and all of their contents will be swept up into the gaping maw of the program, and—if all goes as planned—distribution and revenue opportunities will flow appropriately. This framework will cause rivers of printed content to flow into the digital sea.
The overarching value of Google’s technology and its information services is in their ability to scale. Google successfully has presented a framework for content to move into digital channels at massive scale.
The MO of the ‘Big G’
Why, then, the Sturm und Drang? Perhaps the outrage from publishers stems not just from Google’s programs and actions, but from the style with which these actions are executed.
In 2006, Google’s practice of copying the contents of Web sites it indexed onto Google’s servers and directly delivering this content via Google’s “cache” was contested in an oft-cited U.S. District Court case, Field v. Google. Google’s defense maintained that it had the right to cache Web site contents, and further, attorney and author Blake Field had the option to opt out of having his content cached in this way.
The court ruled in Google’s favor on a number of points of law. Among them: Since the delivery mechanism of the Web requires content to be cached or copied in some way from server to browser, content placed on the Web carries an implied license to be copied. Also, the court held that Google’s caching of content to support search represented fair use. There are similarities of Google’s modus operandi in the AAP and Field cases. This MO consists of a presumption to rights of access to information without prior license and the use of an opt-out mechanism, which places the onus of enforcement on the rights holder.
Google: Media Company
Google’s impact on our culture and daily lives almost makes it defy classification. The mission statement “to organize the world’s information and make it universally accessible and useful” is pretty broad, so that doesn’t help completely. However, the wake of the AAP settlement does help: Google is a media company, if not, indeed, a publishing company.
One definition of a media company is an organization that obtains or facilitates the creation of content for which there is an audience and monetizes the delivery of that content via advertising or content sales. Google now fully qualifies. Its content offerings consist of both software-generated indexes (not unlike data and analytic feeds to financial services) as well as editorial/creative content. Google’s revenue includes both advertising and content sales.
At present, Google’s role is more akin to a distributor than a publisher, per se, and clearly represents more of a competitive threat to distributors than to publishers. However, in the case of YouTube and Knol, Google also acts as the facilitator to the creation of original content.
The overriding objective of any shareholder-owned company is the maximization of shareholder value, which in Google’s case is primarily derived by maximizing media-based revenue streams.
The Opt-Out World
Should the settlement be completed and the terms enforced, other digital content scenarios likely will refer to the Google Book Search settlement as precedent, especially the opt-out practice.
Therefore, any type of media or information is fair game for an aggregator to copy and serve, as long as mechanisms are in place for the original creator to alert the aggregator if he does not want his content to be included in the program.
That’s how YouTube works. Anyone can upload a copyright-protected video to YouTube, a Google service, and the content will remain until the rights holder complains and the content is removed. YouTube is employing ever-effective policing software to automatically identify copyright infringement, but as a matter of policy, the onus remains with the rights holder to alert the service of the infringement. YouTube is not on the hook for enforcement. Viacom has taken issue with this practice, in protracted and ongoing litigation.
The Viacom case aside, if we are truly in an opt-out world, why wait for a consumer to upload the video? Why not take feeds directly from cable, digitize the programming, and index and serve it, as long as there is a way for rights holders to opt out?
Ridiculous, isn’t it?
Andrew Brenneman is founder and president of Finitiv, a California-based provider of digital content solutions. He has been leading digital media initiatives at major media and technology organizations for more than 20 years. Contact him at Andrew@Finitiv.com.