Concerns over on-line links and copyright have been revived by a Belgian Court order against Google over its ‘Google News’ service threatening daily fines of up to €1.5m for failure to comply
Who: Google, Inc and Copiepresse
Where: Brussels High Court
When: September 2006
What happened:
Copiepresse represents some of Belgium's biggest newspapers. It is licensed by royal decree to defend the copyrights of its' members.
On 3 August 2006, a writ of summons to appear in court, issued by Copiepresse, was served upon Google. Copiepresse claimed that by including headlines and links to online stories from the Belgian press without its prior permission, Google News infringed the copyright of its newspaper members including La Libre Belgique, La Derniere Heure and Le Soir. The problem was Google News' offer to internet surfers of a press review on the basis of an automated selection of information contained in the web servers of the Belgian press. Google News searches in these web servers of the written press and extracts articles for copying and or automated summaries.
The process starts in March 2006
The matter was heard at a public oral hearing of 29 August 2000, but the machinery for the Copiepresse claim had been set in motion months before in March 2006, when a request for leave to proceed with a descriptive attachment (an expert report) was filed and granted and an expert was appointed. According to the Court, Google received notification of this procedure in April 2006. The expert described the manner of presenting press articles and the interactivity between the visitor and the web site of Google News and concluded that Google News is an on-line information platform and not a search engine.
When an article is still online on the site of the Belgian newspaper, Google directly directs to the page where the article is posted through deep hyperlinks. As soon as the article is no longer available on the site of the Belgian paper, one can obtain the content through a cached hyperlink which directs to the content of the article that Google registered in the cached memory on the gigantic database of Google. Google denies caching.
Expert's findings
The expert report submitted that:
– the functioning of Google News causes loss of control by newspapers over their web sites and their content
– the use of Google News circumvents advertising on the websites of the newspapers who receive important revenues from advertising inserts.
– the use of Google News shortcuts many other elements such as information on the newspapers editor and publisher, on the protection of copyright and on authorised or non-authorised use of data, links to other sections;
The Judge considered that the following was at stake and endangered:
– important revenues from advertising
– electronic sale of articles
– income from archived articles (paying consultation)
Following the 29 August hearing, the court handed down its Order on 5 September 2006, finding Google in breach of the newspapers' rights. Google says it was unaware of the proceedings until 15 September. It plans to appeal.
€1.5m Euro fine threat
As it stands, the Order states as follows:
– the activities of Google News and the use of cache by Google violates copyrights and neighbouring rights (Act of 1994) and rights on databases (Act of 1998).
– Google must withdraw from all its sites (Google News and cache Google under whatever denomination) all articles, photographs and graphic representations of the Belgian newspapers, represented by Copiepresse as of the notification of the Order, under a daily penalty of 1.000.000 EUR for every day of delay;
– Google must publish in a visible, clear manner without comments on the home page of “google.be” and “news.google.be” the entire Order during an uninterrupted period of 20 days as of the day of the notification of the Order under a daily penalty of 500,000 EUR per day of delay.
Why this matters
The matter will go to appeal in November 2006. Besides the importance of the media coverage of the Order, the dispute and the Order matters because the use of deep links by search engines to publish news is not considered illegal everywhere.
First, through Google News, one reads newspapers which one otherwise would not read and the sites receive more surfers which can boost traffic and advertising tariffs on the sites covered and copied.
Second, the decision, that Google News is a news portal and not a search engine is not obvious as Google News is no more than a clever computer. The computer decides on the basis of some keys what is important news of the day.
The outcome of an appeal is likely to be much more interesting as these issues will be dealt with, including the relevance of the changes that Google makes to texts and the cache memory function of the search engine.
Litigation on so-called misappropriation of news by search engines is not new and goes back at least 10 years in the U.K. and the U.S. More recently, US judges have refused to condemn deep linking in similar matters on the basis that the linked site was not in a position to evidence that deep linking is detrimental to those whose sites are copied.
