November 06.0, 2012

The more difficult the times on the home front, the higher the temptation for a weary ruler to declare war and unite the nation against the chosen target. Resolutely keeping the case of Napoléon III (1) out of his mind, "[last] week, President François Hollande of France threatened Google [...] unless it came up with a way to compensate news sites by the end of the year", according to the Paris dispatch carefully edited by Eric Ffanner (*).

Do not be taken in by the fact Google is not a state. In today's world, Google yields far more power than many a traditional state and, victorious, could impose quite onerous conditions on what it would rightfully consider a defeated foreign foe. For starters "Google [...] would consequently be forced to stop indexing the French sites", immediately starving them from "30 to 40 percent of [their] traffic".

This is not to say Google is invincible, only that alone, France cannot count on mustering the same level of resources as a country the size of China. Wasn't one of its goals in nurturing the European project to project power at the right scale? When one sees Germany, France and Italy copying the Curiatii (2) as they chase after Google in eager disarray, one can see why the EU got the Nobel Peace Prize. It is utterly incapable of waging war.

My historical examples do not inspire undue optimism and may, I confess, convey a slight sense of disapproval. I further admit that I have come to consider today's copyright laws to be on par with the seigneurial rights swept away by the French National Assembly on August 4, 1789.

Pinched in the years leading to this famous night by an economic crisis doubled by gaping budget deficits, French lords were all a-leaping to scrub their "terriers" (3), lest they let the smallest right on their tenants go unclaimed. So do copyrights owners. They pursue lowly poachers with vindictive righteousness, they even go after legitimate trade, they ceaselessly clamor for the extension of their privileges.

This benighted attitude is not limited to France or Europe. No less than two major battles are being joined in the United States.

The first pitches music streaming services like Pandora against the music industry represented by "MusicFirst Coalition, which includes the recording industry association, SoundExchange and others" (**). According to Ben Sisario, copyright holders currently receive "8 percent of [the] revenue of [Sirius XM]", a pay-for-service satellite radio broadcaster, compared for example to "about 54 percent of [Pandora's] revenue". Designed to redress the legal basis behind this rather biased status quo, "the Internet Radio Fairness Act" understandably raises a fair amount of contention.

The second is fought in the Supreme Court by an enterprising Thai who financed his studies in the US by importing textbooks printed by John Wiley & Sons in Thailand. Under US copyright law, "the general rule for products made in the United States is that the owners of particular copies can do what they like with them". But "lower courts said that textbooks manufactured outside of the United States" obviously cannot be covered by this rule, Adam Liptak reports (***). If John Wiley wins, copyright owners can safely dump their wares on the whole world.

When worldwide, the trend is to trim, if not altogether suppress, trade barriers, can copyright owners let themselves be painted as such staunch standard bearers of protectionism? Can production insist on retaining feudal rights over distribution in perpetuity?

Back in Europe Germany, the strongest of the Curatii, has already proposed a "so-called ancillary copyright bill" to "give newspaper and magazine publishers the right to stop search engines to link to their web pages", writes Gerrit Wiesmann (****). For "Jimmy Schulz, a Free Democrat who runs a tech company", "this law is like asking a fine-dining guide to pay for the privilege of listing a restaurant". His comparison is right but perhaps is a tad timid in its scope. If I were Mayor of Paris, could I not demand a cut on the revenues of all the operators whose turnpikes lead to my city?

Yet Google is not benevolence incarnate. Despite their extravagant claims, we should not condemn copyright owners without taking the time to analyze the issue. I have sympathy for them. Creation deserves compensation. The passage to the Information Age is definitely not kind to them. But the more they cling to the business models which have so far supported them, the more they look as irrelevant as Maître Cornille and his windmill at the end of the XIXth century or, if they want a more exalted role model, as visionary as the aging QianLong Emperor at the end of the XVIIIth.

Indeed what is at stake is not the protection of original content, it is the providers' ad-driven business model. In the Industrial Age, advertising was bound to content onto a common physical medium, cheaply mass produced. Having dispensed with the physical medium, we have broken this tie and, more subtly, inverted how distribution links readers and publishers. What counts is no longer how the physical medium travels to the readers, it is how the Internet searches travel from the readers. Thus as a search distributor, Google gets first dibs on ad revenues ahead of the publishers.

With the first version of HADOPI, former President Nicolas Sarkozy attempted to abridge French republican liberties to better combat individual digital pirates. Instead of emulating such a supine subservience towards lordly copyright holders, instead of opposing an irreversible evolution in information publishing, President François Hollande should remember how the French people propelled him to power.

Newspapers claim that Google steal from them by refusing to ask for permission when appropriating snippets from their original content. But what about all the private citizens whose original behaviors are captured online by Google? Does anyone seriously believe they have given their free and explicit consent? Are their life snippets not to be protected because the digital pirate is a corporation and they are but little people of no account?

Instead of wasting breath and blood in a futile news paper chase, France should rather instill some steel into the European Commission in its well targeted but so frequently toothless dealings with Google. Shouldn't the latter be forced to desist from offering content services as creating so many conflicts of interest? Shouldn't it start to respect eprivacy beyond making great shows and empty promises about it? I greatly respect both Ms Viviane Reding and Mr Joaquin Almunia as well as the Article 29 working group but, if their words are blunt, their swords have so far been blunter.

This does not mean President François Hollande should abandon the French press. On the contrary, he should encourage it to update its business model through genuine innovation. Well researched news which move markets can command a high price for a short while. It is also time newspapers realize they are in the recommendation industry and have eprivacy in their genes. Why suppress the expression of the latter in their online incarnation? Wouldn't new forms of revenues become possible, including from personalized, yet confidential advertising?

Never to be declared "with a light heart", war is best waged with the focus of a young Bonaparte, this time not against but for and with Europe.

Philippe Coueignoux

• (*) ....... A Clash Across Europe Over the Value of a CLick, by Eric Ffanner (New York Times) - October 31, 2012
• (**) ..... Fight Builds Over Online Royalties, by Ben Sisario (New York Times) - November 5, 2012
• (***) ... Justices Weigh Case On Imported Textbooks, by Adam Liptak (New York Times) - October 30, 2012
• (****) . German newspapers push for internet fees, by Gerrit Wiesmann (Financial Times) - November 5, 2012
• (1) see Napoléon III on wikipedia
• (2) see the Curiatii on wikipedia
• (3) I do not know how to translate this French technical word for the legal records of feudal rights. See Livre terrier and Babeuf in the French wikipedia