German news publishers are picking up where the Belgians left off, a now not-so-proud tradition of suing Google for being included in its listings rather than choosing to opt-out. This time, the publishers want an 11% cut of Google’s revenue related to them being listed.

The news comes from Jeff Jarvis, who writes that a group representing about half the major news publishers in Germany have a started an arbitration process demanding that Google pay 11% of revenue related to listing links to and descriptions of their content.

The actual suit (in German) from the VG Media industry group is here, which demands up to 11% of all gross sales worldwide (plus VAT!) of revenue related to its content, as of August 1, 2013.

Beyond What Leistungsschutzrecht Allows?

From Spiegel (again in German, and working off a Google translation), VG Media includes twelve publishers including giant Axel Springer. The story also suggests that the publishers feel they have a right to demand license fees because Google’s use goes beyond a new German copyright law created last year.

That law, referred to as “ancillary copyright” or “Leistungsschutzrecht,” allowed search engines free use of single words or very small text excerpts. Apparently, the VG Media group still feels there’s use happening where payment can be demanded.

The move produced two major absurdities. First, it’s incredibly difficult to even know how much revenue would be generated, if any, by these links.

The Difficulty In Calculating A Publisher’s Cut

Within Google News itself, there are no ads. So as Jarvis writes, “Are the publishers seeking 11% of 0?” But news content does appear outside Google News, within regular Google searches, where ads can be present.

To figure an 11% payment here, the publishers would apparently want to know any time their content appeared with ads on search results pages. Then, if any of those ads produced revenue, they want 11% of that.

It’s a difficult but not impossible task for Google to figure this out. It already tells publishers through Google Webmaster Tools what the visibility of their pages are like. It could clearly tell for a particular publisher if pages are showing in the top results.

More work would be required to tell if a publisher was present where there was an ad click. There’s an even bigger debate on whether a publisher being one of 10 to 30 links that might appear on a page should be given the entire credit for a click and thus 11% of revenue earned by it.

Publishers Aren’t Forced Into Google

All that is likely to get argued in arbitration. But that leads to the second big absurdity. Google isn’t forcing the publishers to be in Google at all.

Let’s do a little history.

Back in 2006, Belgian news publishers sued Google over their inclusion in the Google News, demanding that Google remove them. They never had to sue; there were mechanisms in place where they could opt-out.

After winning the initial suit, Google dropped them as demanded. Then the publications, watching their traffic drop dramatically, scrambled to get back in. When they returned, they made use of the exact opt-out mechanisms (mainly just to block page caching) that were in place before their suit, which they could have used at any time.

The case carried on for six years in total. In the end, it was settled in what’s become common when Google is in disputes with publishers. Google pledges some nebulous collaboration that will support the industry. See also the €60 million “Digital Publishing Innovation Fund” it created for France last year.

With the German papers, they can opt-out of being in Google just as easily as the Belgian papers could have done back in 2006. They even have more granular control, where Google gave assurances to Italian publishers in 2011 that opting out of Google News didn’t mean they’d be dropped from Google entirely. But even before then, to my understanding, it was always the case you could request to be dropped from Google News but still be in Google Search in general.

In short, if the German publishers feel Google is unfairly infringing on their rights without payment, Google has a good argument that they’ve been failing to prevent this using industry-standard practices that every one of those publishers absolutely has to know.

And Some Publishers Work To Increase Their “Free” Visibility

Indeed, Axel Springer’s Bild publication — one of its largest — makes use of Google publisher code to assist its appearance in Google search results:

Elsewhere on the site, there’s code showing that Bild is explicitly telling Google to “follow” links within its site in order to index them, as well as providing news keywords specifically meant to increase the chances of ranking better in Google:

This type of thing — along with any evidence that any of these publications are using Google sitemap lists, implementing Google Authorship or making use of Google Webmaster Tools — will go to demonstrating that the publishers aren’t somehow being swept up into Google’s results against their wills.

Rather, they show the publishers are actively trying to leverage Google for free traffic — and after gaining it, demanding that Google also pay them for the privilege.