Google suffers setback in copyright case

A ruling against Google in a copyright case in Belgium may influence courts in other European countries, but not the United States where laws are more permissible, copyright lawyers said Tuesday.

A Belgian court on Tuesday ordered the search giant to refrain from showing excerpts of articles from French- and German-language Belgian newspapers on Google News and Google's Web search site for Belgium, reaffirming an earlier ruling by the same court against the company. However, in a nod to Google, the court reduced the daily fine Google faces if it fails to heed the order, from $1.3 million to $32,500.

This is the company's second go-round with the case. Google lost in a ruling in September and the case was reheard. Late last year, Google settled with Belgian journalists and photographers, but not with the organization Copiepresse, which represents the newspaper publishers. The search giant has been complying with the order while the case was pending.

"Google has a very aggressive approach toward copyright law...The ruling should be a serious message to Google to rethink that approach."

--Lee Bromberg, copyright and trademark attorney

Google will appeal the ruling, a company spokesman said.

"Google is disappointed and we intend to appeal the ruling because we believe that Google.be and Google News are entirely legal and provide great value and critical information to Internet users. However, we are very pleased that the judge agreed Google should be given notice of articles and other material that content owners want removed. As we have in the past, we will honor all requests to remove such materials," said Google spokesman Ricardo Reyes.

"It is important to remember that both Google Web Search and Google News only ever show a few snippets of text," Reyes added. "If people want to read the entire story they have to click through to the Web publisher's site where the information resides. We believe search engines are of real benefit to publishers because they drive valuable traffic to their Web sites."

The ruling sends a strong message to Google, said copyright lawyers.

"Score one for the content providers with the Belgian ruling saying Google had gone too far," said Lee Bromberg, a copyright and trademark attorney at the Boston firm of Bromberg & Sunstein. "Google has a very aggressive approach toward copyright law...The ruling should be a serious message to Google to rethink that approach."

Specifically, the court rejected Google's defense that storing of cached copies of the articles and use of excerpts was fair use of the material and thus not a violation of copyright. The court also did not agree with Google that newspapers should have the burden of opting out if they don't want their articles included on Google.

Will other European countries follow?
"There is a good chance that other European countries will think that the ruling made sense," Bromberg said. "The folks in Europe, at least my perception, is that they are perhaps less enamored of whiz-bang technology than we are over here."

Google is likely to fight hard to prevent the ruling from serving as a precedent for other countries to follow, said John P. Ward, an attorney in the Palo Alto, Calif., office of Greenberg Traurig. "This would have a resounding impact on Google's business if each court in each country (there) took the same position," he said.

The decision is not expected to affect any court cases in the United States, the experts generally agreed. However, it is likely to be noted by lawyers for Agence France-Presse, which also has sued Google over copyright concerns with Google News, said Eric Goldman, an assistant professor at Santa Clara University School of Law and director of the High Tech Law Institute. "But it's unlikely that judge would consider it heavily," he said.

Caching of articles is permitted under U.S. copyright law, said Ralph Oman, former register of copyrights for the United States and now a lawyer with the Dechert law firm in Washington, D.C. "Those cached links offered by Google give free access to the archived articles that some papers would otherwise sell," he said.

If Google appeals and loses, the company could end up creating a localized version of Google News for Belgium that complies with the ruling, according to Goldman. Or Google could decide to go further and change the site for everyone to avoid further litigation, Goldman said. "For instance, Yahoo with the Nazi memorabilia case, they had a worldwide standard based on their liability in France," he said, referring to Yahoo being prohibited from selling Nazi-related items on its portal.

"Google treads a lot closer to the borders in copyright law than they publicly admit," Goldman said.

Chris Ruhland, a litigation and intellectual-property lawyer with the Los Angeles office of Orrick, Herrington & Sutcliffe, said the ruling wasn't that dire for Google.

"I'm not sure a lot can be read into it since it is one court in Belgium and it is subject to an appeal," Ruhland said. While courts in continental Europe tend to apply fairly strict copyright protections, each court will decide for itself, he said.

The newspapers were doing themselves a disservice, Ruhland added. "They won a legal victory for now but maybe not in the long term," he said. "In 2007, if you are not findable in Google, you might as well not exist for practical purposes."

The case is likely to be watched closely by Google search rivals Yahoo and Microsoft. Copiepresse also has warned Yahoo, and Microsoft agreed to remove links to Belgian newspapers after being contacted by the group.

[extinctone]

So what's the problem?

The copyright holder should be able to control how the content is used. And Google is free to set the terms under which it will index a site. If they can't agree, exclude the site from the Google search.

[t8]

Yes

Yes it would be foolish to exclude yourself from Google's index and it would hurt those excluded much more than Google.

But Google's mission is to organise all the worlds information and excluding information or having to ask permission to content owners for indexing would seriously impeded that vision.

[mrjam32]

The problem is...

The problem is that if Google is not generating the traffic, then the following happens:

(1) The traffic goes directly to the source without the use of a search engine, reducing potential revenue.
(2) Google loses another avenue for tracking certain users (which really is related to #1)

Google always wants you to use them versus something else. If nothing else, you help them generate a huge database of information used to target potential customers (ads).

[Renegade Knight]

Alternatly

Google can display directly a "Window" to the copyrighted content. Google is off the hooks because the copyright holders are displaying for the world to see their content just as they are allready doing.

Functionally I can't tell the difference. But google by not directly providing the info and instead providing a "net window" that lets you see it is no longer "infringing".

Not that making their materials easier to find really violates the spirit of copyrights.

[kdrobb2k]

Cutting their own throats

Sites I never knew existed have been discovered via Google News. Let the newly discovered reap the exposure and ad revenue. Let the "copyright crybabies" sit unnoticed as Google and others link us with new sources of information.

[JadedGamer]

Portal dominance

Yes; as Google climbs in its "portal market share", telling Google not to map your site will be like telling a developer not to port a program to Windows...

[sirpeter]

Xenophobic

Ah zee Americaans! Zey theenk zey can make zee monee from our 'ard work, uh? Eet does not matter if zey are 'elping us get more of zee beezness also - vee just vant them to go avay! Just leave us vith our veird language 'nd veirder accents!

[hadaso]

The problem is the Berne convention treaty

The Berne convention treaty requires that copyrights are automatic and practically nothing is allowed without the copyright holder explicitly agreeing. This is incompatible with how things are done on the web, including the way those that are suing Google are behaving: first they make their content freely available on the web and publicise that their content is abvailable. That means that implicitly they are allowing use of their content. Later they choose to go to court and claim that they did not allow certain uses explicitly. To know what they allow and what they do not allow you need to wait till they sue you.

So what really should be changed is the berne convention treaty and copyright should not be implicit (and if it is it should not require explicit consent when imlicit consent was given). And until this is changed, there's a problem. Google can decide to not catalog what the author has not explicitly allowed, but this is incompatible with Google's mission, so they cannot do it right now.

However I think that they should be gradually moving to a model that is very restrictive on content whose cataloging is not explicitly allowed by the copyright owner. There should be some mechanism along the Creative Commons model that would allow a copyright owner to specify how Content can be cataloged, whether cached copies are made available etc. that content owners can easily use to sprcify how they want their content cataloged, and then Google can gradually move to giving precedence to content that has higher availability to the user. That would eventually make content owners that actually want users to get to their content decide on exactly what they want to allow and what they do not want to allow. They would have to choose if they want to receive free publicity using serach engines and information aggregation services or they want to keep their contents out of these and do their self promotion in other ways.

[hadaso]

Copyright or "copy-burden"

I replying my own post to add a thougt:

The way copyright laws work now is that they remove the burden of registering content by the "owner" and they create the burden of having to seek explicit permission for use of the content.

While perhaps these laws are not going to change soon since there are powerful organization that benefit from this way of doing things, the Code (in the sense of Lessig) that runs the web can be made to work in a way that that makes the need to give an explicit permision for each single use of content into a burden on copyright holders (a burden that can be minimized by explicitly providing general use licences like the Creative Commons model).

That is, since the need to obtain explicit licenses for each use is incompatible with the way the web works now, its code should be used to create incentives for content providers to publicise their permissions in advance instead of retroactively through law suits.

[rjakobson]

The Problem Is ...

The concept that a work on the Internet is freely available is hardly implied. Further - the actual copyrights provided by web use are on the newservices web sites. It is not a in order to discover what rights are given freely you have to wait to be sued situation at all.

It is a situation where Google - for whatever reason (automatic cataloging, etc) does not bother to read and peruse these rights - and then take them into account when crawling the web and then providing the content they've captured.

We seem to assume that Google is a free service - which is erroneous. It's free to we - the people who use the service as searchers - but it's paid for similar to how TV and Radio were before we all were on cable and satelite. It was free in the sense anyone who had a radio could use it. But the music played on it - was never meant, implied or otherwise meant to be recorded and used as the user wished. I could not - record a song I heard on another radio station, then play it on my own.

This is a commonly understood area of copyright law. Google - and much of the internet world - simply wants to pretend it's reuse of a recorded material from the Internet is not the same thing.

[wsdowns]

Naive Euro-Publishers are Missing the Boat

In the old days media giants like CNN used to play cat and mouse games with people who would link to their content (yep, you read that right). They would change the content locations every few hours so that various websites across the net would not be able to claim CNN content as their own. Then, one day, these big companies woke up and realized that there was no harm in having others link to their content. In fact, this was a practice to be encouraged - and with new mechanisms like RSS it was the best way to drive MASSIVE TRAFFIC.

These content "owners" deserve what they get - when websites across the planet remove all the links to Belgian content maybe they'll begin to understand what the web is all about...

What's next, if I "quote" or "paraphrase" a news story I read is that legal?

[joebuff75]

some newspapers not in line

I reckon some of the french-speaking newspapers in Belgium
are not in line with Copiepresse.

Go to Google.be and search for "sudpresse" which displays a
page containing logos for certain newspapers.

When you search Google.be for individual sites listed on
Sudpresse, you see that those sites are being blocked: "In
response to a legal request submitted to Google, we have
removed 8 result(s) from this page. If you wish, you may read
more about the request at ChillingEffects.org."

So I guess the webmasters are still trying to get traffic from
Google using doorway pages, although their management sits in
the same boat as CopiePresse...

Strangely, "copiepresse.be" is also still listed in Google's index...

[Lord Paul]

More Room for People that want the exposure

How silly Google gives them free exposure and they're complaining. I think Google should remove them from the search results so there's more room for the websites that want to be seen.

[jevenew]

Newspaper articles

Does this mean that your German/French/Belgium gramma can't send you a news clipping? What a crock. This copyright crap is getting out of hand. Just like the dark ages, when the only ones who knew anything were the ones who had the books. If you, as a creative genius, do not want anyone seeing your precious article, keep it to yourself.

[extinctone]

I think it's really funny...

that so many of the posters here seem to think that the complainants in this case haven't considered the benefit of have having their sites indexed. I'm sure they're measuring their site traffic, along with the referring URLs, and they're well aware of the impact of loss of traffic from Google. I also think it's really funny that this immediately becomes a nationalistic issue for Americans. For a nation with such a diverse immigration background, it's amazing how hostile we are to virtually every country in the world.

[brian.lee]

Both parties stupid

Once something like this is set in stone (made law) it's very hard to undo. Google and media companies should have settled this out of court, I suspect the all mighty Google probably flipped them the bird originally when media outlets complained. Perhaps due to an inflated ego "Google is King"

[Steve Imparl]

Re: Both parties stupid

That's a serious problem. An out-of-court settlement would have been better here because it would not have prejudiced future outcomes.

It is helpful to remember that not everyone who wants to protect their copyright is an anti-technology Luddite, a retainer of big media corporations, or an anti-Google malcontent. There are arguments on both sides of the issue. We need to learn to listen better to others' concerns so that we can develop solutions that will work for the highest good of all concerned.