[EDITORS’ NOTE: Kurt Wimmer is a partner in the Washington, D.C., office of Covington & Burling LLP. He is chairman of The Media Institute’s First Amendment Advisory Council, and is the principal author of the Institute’s white paper to the Federal Trade Commission about Google’s practices. The article below is in response to the rebuttal of Oct. 6 by Adam Kovacevich of Google, which can be found on this site.]
By Kurt Wimmer, Esq.
When Google wrote the Media Institute about the white paper we submitted to the FTC (“How Google is Dominating the Media Economy”), Patrick Maines invited Google to respond on this blog. Frankly, we were pleased that we’d prompted a frank conversation about Google and the future of media. We expected and were ready to welcome energetic disagreement with our position; after all, one of the Media Institute’s underlying missions is promoting a diversity of voices on major public policy issues.
But instead of deepening the debate, Google dusted off talking points that it’s been using for years, most of which our paper readily acknowledges.
We don’t question, for example, that Google News drives some traffic to some publications’ websites. Most viewers of Google News do not click through to any of the media sites from which Google scrapes content – about half of all users go no further than Google News and thus do not generate a dime for the content producers. But we know that some traffic does flow from Google News to publishers’ sites. We do have serious doubts about the “value” of this traffic, and we worry that, as it has in other areas, Google increasingly uses its News page to cannibalize whatever value there is. Whether these websites can “opt out” of News is unhelpful because of the predicament News puts publishers in – opt-in, and feed the Google monster; opt-out and starve alone. Our concerns do not relate to publishing only; as our paper pointed out, Google Places is following the Google News model in using its search dominance to scrape and scuttle local review websites. Google’s response breezily ignores these points.
We have the same objections to Google’s treatment of Books and YouTube in its response, which again relies on broad statements rather than engaging in any serious debate. Google simply bypasses our basic premise, which is that it has used its scale to coerce content makers into accepting the Google business model. Google claims legal victory in the dispute between YouTube and Viacom, but the Second Circuit won’t hold oral argument to settle the matter until later this month. Given the brazen evidence that YouTube was founded and grew on a business model of copyright infringement, we believe that Viacom is likely to take the upper hand – but we won’t claim victory until the Second Circuit rules, and suggest that Google should do the same.
And Judge Chin’s concerns about the Google Books Settlement have left that agreement hanging by a thread. Though we disagree with Google’s legal arguments in both cases, we wouldn’t have criticized Google for offering an outspoken defense of those positions. But Google, rather than addressing the colossal quantities of content it stockpiles at the expense of creators and competitors, offers only the same hollow defense: We bring books and video to a wider audience. This is no help, in our view, given the costs that Google’s response sidesteps. Infringement always brings works to a “wider audience” – an audience that the creators of the works did not agree to serve for free, and one that does not fund the creative spark that created the works. In fact, both Google Books and YouTube exist not to bring works to a wider audience, but to create dominant platforms for works that deny creators the benefit of a competitive marketplace.
The rise of Google’s dominance in media deserves a candid discussion, both here and at the FTC. We wish Google had contributed something new to the discussion, rather than just reiterating its weary talking points. We would welcome any additional comments that Google would like to make in defense of its position or in rebuttal to our white paper.
The opinions expressed above are those of the writer and not necessarily of The Media Institute’s Board, contributors, or advisory councils.