Why “final offer arbitration” is Russian Roulette for Google

The legislated “bargaining” process between Google and News Corp is unmoored from reality. Its “final offer arbitration” is unsuited to the task.

Rupert Murdoch

He’s loaded the gun. (Photo provided by Eva Rinaldi on Flickr; CC BY-SA 2.0.)

In the debate over the federal government’s news media bargaining code, rather strange things have happened.

The most obvious is that Australian law now requires some sites to pay to link to other sites – effectively a tax, since there’s demonstrably no transfer of value from linkee to linker.

But another strange event is that the actual news media “bargaining” has been mostly ignored.

That’s a pity. Because the new law employs an interesting and unusual mechanism for resolving disputes: final offer arbitration.

And final offer arbitration looks thoroughly, disastrously, 100 per cent ill-suited to this situation. It essentially refuses to state any principle for setting the bizarre new price on links to news sites, and then asks Google to guess at what a government-appointed arbitrator might say.

In other words, it legislates an unquantified tax whose value it says a court will rule on later. It thus  effectively asks Google to play Russian Roulette.

No wonder the company is cutting deals. You would too.

Final offer arbitration: fine for baseball

Arbitration applies to a dispute under the new code if the two sides can’t agree a price for links to the news site. It’s the bottom line on the code, the condition that dictates everyone’s conduct.

What’s final offer arbitration (or “pendulum arbitration”)? It’s essentially a game-theoretic solution to the question of how much search engines should pay to post links to the websites of News, Nine and other media organisations covered by the code. In a negotiation between News Corp and  Google, say, each side makes one offer. Then an independent arbitrator simply chooses whichever offer he thinks is closer to being right.  Bang! We’re done.

In the right situation, final offer arbitration seems a neat solution. It encourages both parties to make a reasonable offer, for fear that the arbitrator will choose the other offer as more reasonable. Ideally, the two final offers end up very close together.

Now, this can certainly work well in situations where there’s a lot of market data pointing towards an appropriate settlement – price data, existing case law, a long history of prices and conditions. It has been suggested as a way to settle various labour disputes, and actually embraced in US Major League Baseball.

A final offer nightmare case

But in some situations it looks likely to work badly, introducing enormous uncertainty. And that seems likely to be how a dispute between News Corp and Google could end up.

Here’s why. Right now, there’s pretty much no data that links from Google to News Corp benefit Google more than News Corp. This is very different from US baseball, where there’s widespread agreement that players add some value (obviously!), a long history of payments, and relatively narrow disputes about quantum.

Actually, there is some data. But what it suggests is that the benefits run the other way, and that News Corp is getting the better of the current situation.

For a start, right now no news media anywhere get paid for links from anyone. In other words, the law says that arbitrators would have to decide how much Google should pay News Corp, when reality suggests that if anyone pays anyone, for links, News Corp should pay Google.

This is not just because the Internet got into some strange non-paying habit. It’s because money flows the same way value flows. And when a search engine links to a news site, all the evidence is that the news company gets the better of the deal.

Indeed, to the extent that money ever flows in these circumstances, it flows the other way: media companies pay search engines. (It’s accepted that decent search engines only allow this by marking each link clearly as “Ad”. Media companies get away with putting the ads under a more ambiguous heading, like “Promoted” or “Sponsored Content”.)

If you don’t believe me, take a look at this additional post. But to summarise that post here:

  • The media companies disclose the true value of links in the price they charge everyone else: no more than $0.
  • The media companies show they want digital giants’ links by refusing to bar them from their sites using simple robots.txt files.
  • The media companies show they want those links described in detail by packing their HTML meta tags with information.

The reality: no-one knows how an arbitrator would decide

So the obvious starting point for negotiations on the price for links is that Google should pay News Corp $US0.

But in the world we’re in, could Google offer that? With final-offer arbitration, would an arbitrator agree?

The reality is that there’s no real way for anyone to know what an arbitrator would do. Arbitrator A, an economist, might look at the market and decide $0 is a very reasonable offer in all the economic circumstances. Arbitrator B, a lawyer, might decide that 10 cents per story is just fine. The strength of final offer arbitration is also its weakness: the arbitrator has to accept one of two offers. When the society can’t agree on the basic principles of fairness in a particular situation – when the subject of the arbitration is unmoored from economic reason – then everything becomes a crap-shoot.

Now, Google can’t really take that risk. It can’t be expected to just gamble that an arbitrator will come up with some non-zero number, whether for well-thought-out reasons or, just as likely, somewhat weird ones.

Effectively, Google is being asked to ignore the market signals and just guess at what might go through an unnamed arbitrator’s head if the issue ever came before them. And that’s why Google is cutting deals on news.

It’s possible that the ACCC has some reasoning on final offer arbitration that I haven’t seen yet. I want to cut it some slack: over the years it has played a constructive role in Australian society, and ACCC chief Rod Sims has been a model public servant. Yet right now, its utterances on this issue seem bizarre. Likewise the federal government – but I like to think the ACCC can be held to a higher standard.

The bottom line

Google may be guilty of various sins – for instance, gradually shrinking the prominence of the “ad” warnings on paid links. But on the numbers, underpaying for linking to News Corp sites doesn’t seem very likely to be one of those sins.

Yet Google has effectively been confronted with a bizarre commercial choice: pay up, or play Russian Roulette on final offer arbitration.

Footnote: Game theorist Joshua Gans, a great Australian economist (and great writer) at Rotman, is ideally placed to assess this. He argues in a tweet thread that the arbitration mechanism ends up pushing Google and media sites into anti-competitive deals. “Where they can, by agreement, subvert the public interest with less competition, they will … the code drives them there.” Gans sees a good chance that the ACCC has pretty directly degraded media competition here, with smaller sites the losers. Read the whole thread or look at his blog post.

About David Walker

David Walker runs editorial consultancy Shorewalker DMS (shorewalker.net), editing and advising business and government on reports and other editorial content. Newsletter: https://shorewalker.net/subscribe . Among other roles, David has edited the award-winning Acuity and INTHEBLACK magazines, been chief operating officer of online publisher WorkDay Media, held senior policy and communications roles at the Committee for Economic Development of Australia and the Business Council of Australia and run the website for online finance start-up eChoice. He is a former economics writer for The Age and News Ltd. He has qualifications in law and corporate finance.
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John R walker
3 years ago

Hard to choose between our media moguls or the likes of Zuckerberg re unattractiveness.
Gather that google has agreed to direct negotiations with the media moguls and will probably not be covered by the proposed legislation , is that correct? Have been using DuckDuckGo for sometime it works fine. If google really wanted to go nuclear it’s google maps that would be very hard to substitute for.

John R walker
3 years ago
Reply to  David Walker

I stopped using google because of the data issue it’s a bit spooky when you log onto say a weather app and the adds in my case are all for art supplies.
Agree re ,it makes lots of money, let’s see if we can squeeze some rent.
This story is reminiscent of the story in the 70s tgat led to the creation of CAL and effectively a tax on education, hypothecated to a select group of publishers , for ever. It disturbs for similar reasons , a poor idea in principle and unlikely to actually address the real problems .

John R walker
3 years ago
Reply to  David Walker

Yes it was the indirect result of : new technology;increased access to photocopy machines in Uni libraries, two court rulings and a good deal of lobbying by some interest groups.
A big problem with things like it is once created they are next to impossible to put an end to

3 years ago
Reply to  David Walker

I am imagine it is not really just “makes a lot of money” that is causing this — it’s the lack of tax many of the companies pay, and I imagine getting money from these companies in anyway possible is probably appealing to many of the general public at large. This might be because they don’t understand these more nuanced arguments or they do but don’t care because many of these companies are essentially using what they as see dirty tactics not to pay any tax and thus any method that gets money may seem like a good idea. Of course News Corp doesn’t pay any tax here either (or so little it doesn’t matter), so they are banking on a general misunderstanding from the general public here, but they are probably correct on this bet.

derrida derider
derrida derider
3 years ago
Reply to  Conrad

I can’t see how tax is relevant here. The transfer from Google is straight to Mr Murdoch, not the taxman. The point is especially irrelevant because it is not as though Mr Murdoch pays tax either.

As others said, both sides here are greedy bastards for whom it is hard for anyone to have sympathy. So arguments from “fairness” are irrelevant – we should just focus on the effects of this on both sides’ consumers.

John R walker
3 years ago

David I agree that google is no monster it’s just a very big biz .
I would not say the same about Facebook.
I first became aware of just how willing it was to mess with peoples heads about seven years ago vi a US legal academic with an IT background.
The following is a link to his summing of available evidence back in 2014.

Zuckerberg strikes me as truly dangerous but it’s not about paying for links either.

John R walker
3 years ago
Reply to  David Walker

I have avoided Facebook ever since then, so I too in a way can’t comment on the details of the way they operate, mind you not sure that anybody outside Facebook itself really knows what they are doing under the bonnet

John R walker
3 years ago
Reply to  John R walker
John R walker
3 years ago
Reply to  John R walker

Further to the above http://laboratorium.net/archive/2014/06/28/as_flies_to_wanton_boys
the story only became public because it was published as research in a scientific journal . Facebooks idea of informed consent boiled down to, understanding one line in the ,about 9000 word Facebook terms of use agreement doc.
God knows what other research projects Facebook has not published.

paul frijters
paul frijters
3 years ago

Hi david,

yes, its an interesting development, this struggle between two large companies for the profits of the internet. It should be nations muscling into the profits of the innternet giants, but in their absence Newscorps is having a go via its political allies. I take your post to mean that the institution of a bad arbitration method is used as a threat to get Google to give up more in the implicit negotiations. Quite possible: all the real action will be behind the scenes.

We will get a lot more of this. When France threatened a 5% digitax on American internet firms, Trump threatened a 100% on French wine and cheese. That worked.

3 years ago
Reply to  David Walker

David & Paul, why didn’t France compensate  “cheese, wine and handbags” as $2.4Bn is only 1 /1058th of gdp, instead of backing down, considering 1, 2 & 3 below? $2.4Bn tax also an offset?

And, David Walker says “In other words, it asks Google to play Russian Roulette. No wonder the company is cutting deals.”

And why Google is asking to be taxed – globally. (which will happen about the time we have AGW under control)

3. below quotes Google saying it wants to be taxed. 3.

France GDP 2019 $2.6Tn.
“It recommended tariffs as high as 100 percent on certain French imports valued at $2.4 billion, including cheese, wine and handbags.”
nytimes com/2019/12/02/business/trump-tariff-france.html
“France fines Google nearly €1 billion in ‘historic’ tax fraud ruling


…” Google said in a statement: “We remain convinced that a coordinated reform of the international tax system is the best way to provide a clear framework to companies operating worldwide.”