In preparing this post I struggled with the question how to call the process between two parties offering complementary services that obviously refer reciprocally in their actions to each other but do not directly and explicitly negotiate? This question came to me, when recently the German debate on an ancillary copyright (see “Dilbert on Ancillary Copyright“) for publishing houses arrived in the US. “Editor & Publisher”, proud of being “America’s Oldest Journal Covering the Newspaper Industry”, features an article asking “Change in Copyright Law: A Possible Solution to News Content Crisis?”  As a solution suggest by industry representatives, the article reports demands for introducing compulsory licensing fees for Web-based agregators or re-distributors of news content.

But aside this transatlantic discourse coalition addressing legislative bodies, we can see interesting dynamics of unilateral (non-)negotiation between two big players in this game, thereby changing the rules as they “play”: Google and Rupert Murdoch’s News Corp. The latter’s opener were plans of a partnership with Microsoft regarding the new search engine Bing. Business Week’s Douglas MacMillan describes the potential deal as follows:

“In an effort to keep News Corp.’s newspaper content out of Google’s search results, Murdoch’s media giant has held early-stage talks to forge a deal that would put content from The Wall Street Journal, and possibly other company-owned publications, exclusively in Microsoft’s Bing search engine. […] In exchange for the exclusive content, Microsoft would pay an undisclosed fee[.]”

Only about a week later Google announced its counterstrike on its corporate blog, explicitely referring to concerns of newspaper publishers:

“As newspapers consider charging for access to their online content, some publishers have asked: Should we put up pay walls or keep our articles in Google News and Google Search? […] One way we overcome this is through a program called First Click Free. […] The user’s first click to the content is free, but when a user clicks on additional links on the site, the publisher can show a payment or registration request. First Click Free is a great way for publishers to promote their content and for users to check out a news source before deciding whether to pay. Previously, each click from a user would be treated as free. Now, we’ve updated the program so that publishers can limit users to no more than five pages per day without registering or subscribing.”

The reason why Google had to change its programs and policies in the first place is its anti-cloaking strategy. Cloaking means showing one web page to the crawler that indexes it but then a different page to a user – a practice necessary for of publishers who want to charge for their content, as they want it to be found by the crawler but not to be accessible to the user before subscribing. For the individual user, however, this small change in Google’s policy may severely alter the web-surfing experience: She will encounter much more digital tollbooths when searching content via Google search.

Looking at the process, we can observe something I would like to call – thereby coming back to the introductory question –  “unilateral governance negotiations”: New rules emerge without direct bargaining between the actors but rather from reciprocally related, unilateral measures. In the case at hand: it’s Murdoch’s turn, now.

(leonhard)