Thus a link tax intended to protect Spain’s publishers will only end up harming them — depriving them of untold audience — and could even end up killing the weakest among them. Spain will also bring damage to the web itself and to the country’s reputation, establishing itself as a hostile environment for investment in technology.
Be careful what you wish for, you old, threatened institutions of media and government, huddling together against the cold wind of the new.
Spain’s link tax is inspired by a similar ancillary copyright law in Germany but goes well beyond the Teutonic statute in one key aspect: The Spanish law requires aggregators (read: Google News) to pay publishers (read: newspapers) for linking to and quoting content at any length. Publishers cannot waive the payment. Thus, come January 1, Google said it could not afford to pay for quoting and sending traffic to the publishers in a service where Google places no ads and says it makes no money.
In Germany, the game over its ancillary copyright law — the Leistungsschutzrecht in local parlance — played out as a theatre of the ridiculous. Quoting a piece I wrote about the sequence for Die Zeit:
Their battle reached a crescendo of absurdity as:
(1) a Leistungsschutzrecht was written to forbid Google et al from quoting snippets of publishers’ content;
(2) the legislation was amended to allow snippets;
(3) publishers sued Google anyway for using snippets, demanding 11 percent of Google’s related revenue;
(4) Google said it would stop using snippets from the litigious publishers;
(5) those publishers accused Google of blackmailing them for taking down the snippets the publishers were themselves using to blackmail Google;
(6) government officials laughed the publishers out of the cartel office;
(7) most of the publishers capitulated because they need traffic from Google;
(8) Springer pulled permission to publish snippets from Die Welt and three minor sites but not from its superbrand, Bild; and
(9) Springer itself capitulated after confessing it lost too much traffic from Google and arguing this demonstrated Google’s crushing market power.
The publishers have succeeded in humiliating themselves, their industry, and their nation.
In Germany, publishers led by conservative powerhouse Axel Springer used their considerable political capital to enlist politicians at all levels to play a game intended to box their boogeyman giant, Google, into a corner. They lost to fight another day. In Spain, though, something was gained in the translation and the government, goaded by its publishers, struck a tragic blow against the web itself.
Of course, the internet is suffering many more bruises in Europe. There is the fight against Google Street View in Germany and Google’s right to take pictures of public views from public streets, pushing Google to abandon updating its photographic maps there. There is the so-called right to be forgotten from a European court, which tramples over the right to remember, the right to free speech, and the right to a free press, as publications are quickly learning. As the inventor of the web, Sir Tim Berners-Lee, said in Paris this week: “The right to access history is important.” And there is the political pressure brought to bear from publishers that drove the European Union to abandon its antitrust settlement with Google.
I bring my own perspective to this story. I am an American. I am a fan of technology, of Google, of capitalism. As a matter of disclosure, please know that Google has paid my travel to events in Spain and Germany to speak on this topic (like Google, I don’t much like losing money) but never a fee. So take what I say about Google with a grain of salt the size of a cow’s saltlick, if you’d like.
But consider the damage to the web and the internet brought by these protective measures from disrupted publishers and politicians conspiring together. Consider the damage to Spain’s, Germany’s, and Europe’s hopes to build their own futures in technology, to attract entrepreneurs and investment and the risk that invention requires. Consider the damage to speech, to the ability of any of us to quote and link to anyone else.
Last month, I attended an “unconference” of journalists, publishers, educators and technologists convened in Phoenix by Google and the Knight Foundation (further disclosure: the latter is a funder of my work at the City University of New York). In an unconference, the participants set the agenda. I was one of more than a few participants who requested a session asking what Google could do for news. At that meeting, we discussed many wishes.
Myself, I wish Google would help news organizations new and old break out of old business models and find new means of sustaining themselves on the net. I wish that Google would help us explore new means of distribution, going to the public rather than making them come to us. I wish that Google would increase its investment in media startups — especially in Europe.
But more than anything, I wish that Google would speak up more often and more boldly in defense of the net itself. I wish Google would defend the net more aggressively against spying by the NSA and GCHQ. I wish Google would defend itself and the net against the protectionism and political opportunism of publishers and politicians. That is just what Google has done in refusing to capitulate to Spain’s link tax. Google is defending the freedom of the link and thus of the web itself.