February 13, 2007 1:43 PM PST
Google suffers setback in copyright case
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 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.
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