Who says business news doesn't happen on weekends? This past one brought some creative and specific thinking to the nebulous notion that Google may be exerting monopoly power in ways unique to the digital era.
Lawyers Bruce W. Sanford and Bruce D. Brown went to the heart of the matter in
a Washington Post op-ed Saturday. Google's mantra that papers can "opt out" if they prefer their content not be provided gratis to Google News and Google Search is a sham, Sanford and Bowen said. The company's "market power lets them get away with it," because, as a practical business matter, newspapers need the traffic.
Copyright laws should be modernized by a statute defining "the taking of entire Web pages by search engines" as infringement rather than fair use, the authors suggested. They also recommended federalizing
the so-called "hot news" doctrine, a 90-year-old court ruling that protected content-originating wire services from having the gist of their stories lifted by someone else.
The Times piece cautions, however, that unless Google is shown to be engaging in anti-competitive conduct, just having an enormous scale advantage and market share in search will not necessarily support a case. It dampens a potential case further that nearly all Google services are free to users.
I've wondered too,
in a previous post, whether beating the tom-toms about Google links could boomerang on publishers. If the company, as appears, is lawyering up to protect its core business franchise, it might view a separate agreement compensating newspapers as bad precedent for a broader range of Google fundamentals.
Google, for instance, has
a running legal skirmish about allowing brand names and trademarks in keyword bidding and ads by competitor companies. And I get Google's viewpoint that as it invents better information tools for millions of customers, it gets to make up most of the rules.
Clemons thinks a case might be built around the theory that Google effectively monopolizes key word search and overcharges those advertisers (especially in the travel industry) who then pass on the cost to consumers. He also suggests that Google makes so much money on search that it can run all the rest of its businesses at no profit, thus building market share while muscling out potential competitors.
By way of analogy, Clemons offers the Justice Department's successful price-gouging anti-trust action in the 1980s against the computer booking services
Sabre and Apollo, owned respectively by American and United Airlines. Four out of five flights back then were booked by travel agents and the two services together handled a significant 70 percent share of computerized bookings for all airlines, not just its owners. Opting out made little sense, especially early on, but as competitor airlines grew dependent on the two services, Sabre and Apollo jacked up charges.
Sound familiar? People constantly tsk-tsk at newspaper management for coasting on monopoly pricing power in the old days. Now it seems, as Sanford and Brown argue, that Google is becoming a news gatekeeper on a national and international scale. It makes no business sense for content providers (like those airlines) to boycott Google News and Google Search. But they are left with no leverage if Google chooses to keep a disproportionate share of associated advertising revenues to itself.
I'm not a lawyer but I try to think like one from time to time in this column. Sounds like a nifty angle for taking on Google to me. Now who will step up and do it?
A lesson worth remembering is at the turn of the...
