15
aggregation of content by topic, combined with high-quality photos, headlines, and snippets in
“carousels” -- can satisfy the reader about the “news of the day” without ever having to click
through on any given story.
19
Further, the navigation features in the app make it very easy for
the user who clicks through to a news story to return to the Google News interface, rather than
going to other stories or the home page of the original news source, which is how a typical news
publisher would design the presentation of an article. In short, while any fair use defense
depends heavily on demonstrating that the new use does not substitute for or usurp the market for
the original copyrighted work, the Google News app appears to do just that for many users.
Since the Google News app likely does not qualify as fair use, Google should have negotiated
fair licenses with the news industry for use of their content in the app. In ordinary
circumstances, a licensor discloses its potential plans for using copyrighted material and
negotiates a license appropriate to the new use, with back-and-forth traded compromises. But
that is not what happened with the revised Google News app for most major newspapers. The
story once again reveals the unfair terms that Google has been able to obtain as a market
dominant platform.
The story begins several years ago with the old Google Newsstand. Many news publishers
agreed to click-through or other agreements with Google contemplating use of their content in
this particular, more benign product. But the fine print in Google’s agreements with news
publishers for Google Newsstand gave Google the right to use the news content in revisions of
the product, no matter how significant.
20
Thus, even though the format of Google Newsstand
changed significantly with the new Google News app, Google undoubtedly would argue that
these old consents apply, in addition to the Google AMP URL API terms of use discussed above.
Indeed, the terms of the current Google News Publisher Agreement begin by providing that, “If
you are already participating in Google News (formerly known as Newsstand) this Agreement
will supersede your prior online terms.”
21
These provisions are a perfect example of the grossly
unequal bargaining power between Google and the news organizations, which Google has
misused to its strong advantage to obtain apparent consent for unknown, as yet undeveloped
products.
Further, instead of negotiating a fair license -- and one specific to the new Google News app --
Google has continued to use its monopoly power to unfairly extract additional layers of consent
from the news publishers for use of their content in the Google News app, and other undisclosed
products. In part it has done so by tying together participation in the Google News website with
19
The Google News app has many of the aspects of the user interface that have been found to depress the reader’s
propensity to visit the content producer’s website -- aspects set forth in an in-depth academic study. See
Chrysanthos Dellarocase, Juliana Sutanto, Mihai Calin, Elia Palme, Attention Allocation in Information-Rich
Environments: The Case of News Aggregators, (Dec. 10, 2015), M
ANAGEMENT SCIENCE Vol. 62, No. 9: 2543-2562,
available at https://pubsonline.informs.org/doi/10.1287/mnsc.2015.2237
.
20
See, e.g., Google News/ Producer, Newsstand Publisher Agreement at ¶2.1, available at
https://www.google.com/producer/legacytos
(last visited June 3, 2020).
21
Google News /Producer, News Publisher Agreement, available at https://www.google.com/producer/tos (last
updated Jan. 1, 2019) (“Google News Publisher Agreement”). While such clauses are not uncommon, circumstances
vary widely; here, Google’s product has changed significantly and the changes have a material impact on news
publishers.