This has to do with how content is gathered, displayed, and monetized by aggregators, not how it is found and distributed. Fair use is a technical term for the standards one must meet in order to use copyrighted material without the permission of rights holders, as in excerpts, snippets, or reviews, and it turns out to be far more flexible than I long had thought. U.S. copyright law sets four main factors to consider in determining what is fair use: whether the quotation of the material is for commercial gain, the nature and scale of the work, the amount being used in relation to the whole, and the impact on the value of the material by its secondary use.

The definition of fair use was central in the lengthy negotiations among book publishers, the Authors Guild, and Google to settle litigation over Google’s intention to digitize copyrighted books for search and distribution without paying for them. At the outset, in 2006, Google apparently believed that releasing only “snippets” of the books meant it would prevail in a court test. The publishers and authors argued that once Google had unrestricted access to the content, it would inevitably be widely used in full or large part.

Ultimately, the sides decided not to force the matter to resolution. Instead, in October 2008, Google agreed to pay $125 million to the plaintiffs and to establish a system to pay copyright holder, share advertising revenues that may result, and build a registry for all books that are available.

The book agreement—actually the settlement of several lawsuits—is nearly 150 pages, plus attachments, of excruciatingly complex detail. Debate over the terms ever since they were announced has been fierce and the court has already postponed final comments from interested parties until October 7. He will then look at the criticisms put forward by, among others, the Harvard librarian and lawyers funded by Microsoft who contend that Google is gaining what amounts to a monopoly in the digital book arena. Then, the judge will determine whether to approve the agreement as is, or send it back for further negotiations to satisfy the objections of its critics. He cannot amend the terms himself.

How the logic of publisher-author-Google pact applies to the news business is not clear—except that Google has acknowledged that the right to scan and distribute information has value, which can be shared with the originators of that content. Google’s licensing agreement with the AP and other wire services—in which it publishes some AP content on its own servers rather than merely linking to it—may be another illustration of the same idea: pay to play.

But what of the aggregation of links? The Google position is that a link with a sentence or two as a tease is fair use of the material, and the site that generated the content actually is a beneficiary of the traffic. With news, the argument becomes entangled in whether the aggregation enhances or detracts from the value of the original content, and also in determining what amounts to fair use when an aggregator surrounds those links with its own summaries, blogs, and other interpretative embellishments, as some aggregators do. The news organizations also argue that aggregators should pay for that right to aggregate when they sell advertising around the links and snippets.

It would take a mind-bending interpretation of fair use to work these issues out, especially if the case went to trial. Many news providers don’t have the time that a case would take (years, probably). And Google, again, may not want to force a final determination of the matter, as in the books case. As the controversy over Google’s role in news intensified in the spring, executives from The New York Times Company, The Washington Post Company, and presumably others, met with Google in search of formulas that might balance their respective interests. Every one involved has signed nondisclosure agreements. If progress has been made in these discussions, it has not become public.


Fair Compensation


All of this still leaves the considerable question of monetizing the reading of material on the free-to-access sites that newspapers and magazines offer, now that it seems that online advertising alone will not be enough to support those operations. There are many ideas around for micropayments or subscriptions, memberships or paid sections within a free site, out of which may come a viable business solution or solutions. Based on my own reporting, the answer could be in some combination of individual payments or cable and telephone fees. Americans routinely pay telecom providers (Verizon, Optimum, and AT&T are the ones in my house) to deliver information and entertainment by television, computer, and wireless devices. The goal would be to extend those payments to the originators of news content. Google, it seems to me, might serve as a kind of meter, helping determine what percentage should go to the content originators. Complicated? Yes, but that is the kind of challenge that computers and the engineers who master them are meant to meet.

One of the best statements on this subject came from Jonathan Rosenberg, president for product management at Google, who wrote on a company blog, “We need to make it easier for the experts, journalists, and editors that we actually trust to publish their work under an authorship model that is authenticated and extensible, and then to monetize it in a meaningful way.” The book publishers and authors agreement with Google recognized that goal, acknowledging that all information is not equal and cannot be free and endure.