Recent copyright conflicts around Google Book Search (see a NYT article) and Google’s video platform YouTube (see another NYT article) independently of one another received a lot of media attention but have not been discussed jointly. This is surprising, not only because in both conflicts Google is under attack but also because both cases have several patterns in common:

First, Google Book Search and YouTube are both tools for making copyrighted material more easily accessible for users. Thereby, Google represents a new type of intermediary between creators and consumers, as they have repeatedly emerged alongside technological change. And as the example of radio broadcasting in the early 20th century demonstrates (see pp. 73ff. in Lessig 2001, PDF), the role and regulation of such new intermediaries is a highly contingent negotiation process.

Second and different to the example of radio broadcasting, both Google Book Search and YouTube are “born global” or at least “born transnational”. This leads to a variety of difficulties that are likely to significantly protract the current conflicts between Google and national copyright collectives over adequate financial compensation for using copyrighted materials. The reason is simply that there is no transnational “referee” who could quickly and definitely settle the conflict, as it had happened in the case of radio broadcasting. On the contrary, in both cases there is not just one conflict but there are several conflicts that are related but still different from country to country. This national fragmentation of a transnational conflict not only gives Google the chance of divide et impera tactics – in recent royalty negotiations, for example, Google played claims of the German GEMA off against the ones of their British counterpart PRS – but also leads to irreproducible differences for users in different countries; as it stands, YouTube blocks videos for users with German IP addresses while users from neighbouring EU member countries such as Austria or France don’t experience any restrictions.

Third, copyright collectives around the world are not only nationally divided but they are also only reacting to Google’s moves. By scanning millions of books or by inviting millions of users to put video content on YouTube, Google created accomplished facts. Of course, copyright collectives around the globe can – and obviously are trying to – retroactively challenge Google’s position but what they cannot undo is the experience of millions of users. As with most innovations, people did not know beforehand how much they needed services such as YouTube or Google Book Search. This, in turn, puts copyright collectives in the position of a kill-joy.

In the end, I predict that we will see a rather standardized, transnational governance regime for services such as YouTube and Google Book search. In spite of all reservations, copyright collectives have a vital interest in settling the conflict: as opposed to peer-to-peer file-sharing networks, Google at least pays royalties and its services bear the potential of inducing additional revenues.

(leonhard)