For much of its history, Google has benefited from the understanding that the company is not a publisher, as it has no content of its own. This reputation and Google’s own assertions along these lines have allowed the organization to draw on certain laws protecting intermediaries on the Web from lawsuits claiming liability for what is posted or seen on its sites, while also preventing it from being sued for copyright infringement in many cases.

Because it indexes the content of others, Google has long claimed it is merely an intermediary, connecting users with results and playing no role otherwise. But recent trends in search cataloging and results presentation show Google taking a more controlling position, and seeking some protection by claiming First Amendment rights as a publisher.

More recently, Google and those watching its behavior have been asserting that it is a publisher, as claiming a publisher role affords the company certain legal protections in the realm of free speech — the ability to use editorial judgment to modify search results. Meanwhile, a new round of legal sanctions may indicate that the days of Google having it both ways may be over.

Is Google a publisher? We’ve discussed this question before — what is a publisher? It isn’t the people who write on WordPress or Facebook or Twitter — the publisher is the organization and employees taking the financial risk (and realizing the financial rewards) of making available a content distribution and curation outlet. Those using these publisher tools are authors. Authorship has become a button on WordPress and Facebook and Twitter, but publishing remains a resource- and cash-intensive exercise.

When it comes to authorship, Google supports it with badges and author tagging. But when publishers have requested similar treatment, Google has stonewalled including publisher logos or identifications in a similar manner. This suggests a somewhat competitive stance. The fact that Google has leveraged its indexing of scholarly content into Google Scholar, which competes with many other commercial offerings, underscores the commercial nature of Google’s indexing.

Recently, such forays into content curation and distribution have led some to assert that it is indeed a publisher. In Spain recently, a law was passed requiring Google to pay news publishers when it scraped and aggregated content in its own interface. This led Google to back out of the Spanish market with Google News, indicating yet again that Google was indeed a publisher, purveying content in a proprietary interface and generating revenue doing so. The problem was that it was unlicensed content, which led Spanish lawmakers to clamp down. Google responded by leaving the market.

At the heart of the issue is money, or the lack thereof, for publishers. In the early days of Google, bartering traffic for indexing seemed a wise tactic. However, as traffic has proven more difficult to commercialize and as Google has pushed various boundaries into publishing, this barter is becoming less tenable.

Questions about the value of this traffic barter have long stalked the Google bargain. Recent events suggest we’re on the brink of a sea change as more publishers are asking why large, general search engines have gotten a pass when it comes to content licensing, making billions by indexing our content without paying publishers for the rights to do so.

The recent revelation that 11-23% of the traffic we’re getting is from robots or other non-human sources suggests that the bargain’s value is not clear to either party. In addition, the ability to monetize traffic in light of other requirements Google places on free content practices is increasingly untenable, as modifications to support Google’s preferences can be expensive in direct costs while also decreasing the value of the underlying content or distorting a publisher’s business model in unhelpful ways.

We are trading for traffic that generates uncertain returns and is expensive to monetize. A more direct path and reliable method to a financial upside would be to charge search engines licensing fees if they want to crawl our content.

This gets more complicated when you understand more about user behaviors. For instance, if you ask customers what they consider to be their favorite “publication,” many today will answer in a confused state, saying that they mainly use Google, PubMed, Twitter, or some other technology interface to find content. Publication brands are secondary, as they have been superseded by search and social tools. Search engines have become a vital overlay on content sources, and for legitimate reasons. But they also cannot exist without those content sources. With news outlets driven to the brink of financial ruin by online business models that aren’t sustainable, legal intervention has become necessary.

The search engines and content providers can forge a more tenable arrangement, of course. For instance, Elsevier’s Clinical Key search engine pays publishers for the content it digests to make it work. This is wise and fair. After all, it’s in every business’ best interest to make sure that its supply chain functions well. Every link of the value chain needs to be viable. A value chain is only as strong as its weakest link, and Google may be inviting problems when it makes major sources of content more likely to disappear.

We often blithely speak of major entertainment and corporate forces as being exploitative and dominant, but most of these pay their vendors and providers fairly. Walt Disney was famous for poaching stories for his movies, but no real complaint ever arose because he paid each source well for the rights to use their stories. It was fair, and both parties were satisfied.

If Google is indeed seeking to gain some benefits from portraying itself as a publisher, then we are within our rights to wonder why we are giving another publisher free rights to our content. This is not an idle question. It seems technologists believe they can claim they are not publishers and then appropriate all the distribution, curation, and legal stances of a publisher.

Robert Levine wrote an entire book on this problem — “Free Ride: How Digital Parasites Are Destroying the Culture Business and How the Culture Business Can Fight Back.” The questions this book poses are only growing more urgent as technology companies continue to intrude on content businesses, and we continue to allow it. Yet, another path seems entirely possible, and the recent Spanish court decision suggests that it’s time to look for an alternative to the sketchy barter solution we’ve lived with for the past 15 years.