The Court of First Instance in Brussels upheld a previous ruling
in favour of newspaper group Copiepresse, as OUT-LAW reported earlier today. Google News and Google's
caching of web pages infringe copyright, it said.
A colleague's translation of today's judgment (and she asks me
to point out that it is only a rough translation) suggests that the
approach of each of the world's leading search engines, Google,
Yahoo! and Windows Live Search (formerly MSN Search) is
incompatible with Europe's copyright regime. Remarkable as that may
seem, lawyers at all these companies likely saw it coming.
These search engines use automated programs called robots to
index pages on the web. Nobody expects Google to phone or write a
nice letter asking permission in advance before indexing a page.
Nobody, perhaps, except Copiepresse. Secretary General Margaret
Boribon told me last year that all
search engines should obtain permission before indexing pages that
carry copyright notices.
The much more practical approach of search engines has been to
follow a protocol known as the robots exclusion standard. If a site
owner does not want its pages to be found, it says so in a file on
its website. That file is always called robots.txt. (See, for
instance, the robot instructions of the
New York Times, allowing much of the site to be indexed
but identifying particular pages and sections as off-limits). That
protocol has existed since 1994.
Google, Yahoo! and Windows Live Search don’t just identify pages
when their robots visit; they also take snapshots of the web pages.
They offer access to these snapshots via links in their search
results marked 'cached' or 'cached page'. Following that link,
rather than the headline link, takes the user to a page on the
search engine's own site – not the target site. The user is seeing
a copy and Copiepresse says it's an unlawful copy.
As with the robots.txt file, a meta data command prevents
caching. NOARCHIVE is a flag to Google that a page should be
excluded from its cache. Experienced site operators know this: you
can find the term in the code of many online newspaper pages that
charge for archive material.
Google argued in Belgium that where robots.txt and NOARCHIVE
commands were missing, a site editor was "explicitly or at least
implicitly" consenting that their pages would be indexed and
accessible via Google's cache.
That argument has worked in the US. A Nevada court considered
the issue and ruled
last January (25-page / 201KB PDF) that a failure by a
site operator who knew about these protocols and chose to ignore
them amounted to "a grant of a licence to Google" for indexing and
caching.
The Belgian court felt differently.
It ruled today
(44-page / 1.2MB PDF) that it cannot be deduced that the absence of
technical protections is an unconditional authorisation. Google's
method of storing copyright-protected work in its cache and
granting access to the internet user without transferring the user
to the original site is an act of unauthorised reproduction and
communication to the public, contrary to Belgium's copyright law,
it said. Google's situation was even more reprehensible, the court
reasoned, because Google News went further than indexing and
caching: it reproduced a headline and extract from a third party
site.
A literal reading of UK copyright laws might draw the same
conclusion. It may be no coincidence that the search engine
industry took off in the US, with its more flexible approach to
fair use, rather than Europe. The issue probably hasn't arisen here
before because it is so much cheaper and easier to follow the
established protocols than to sue a search giant.
The court rejected Google's attempt to fit Google News within
copyright law's recognition of a right to review. Google News
counts articles and classifies them by theme, said the court. This
is automated. Google does not give any analytical opinion or
comparison or criticise the articles. It cannot fall within the
exception of news reporting either, it said. And the failure by
Google News to carry a writer's byline was characterised as an
attack on the moral rights of an author.
So the court concluded that Google's cache infringes copyright
and so does Google News.
The case did not have to address the separate question of
whether infringement takes place when a search engine indexes a
page to perform its primary search function, a process that
involves breaking a page into tiny elements for analysis and
cross-referencing in its huge index. That's another argument,
discussed briefly in OUT-LAW's previous analysis of this
case.
Google has vowed to appeal, but there is a slight twist in
today's ruling.* The penalty, if I understand it correctly,
is not a disaster for Google. The parties are still
disputing whether Google complied fully with an earlier ruling and
if it did not, a daily fine applies to for any past non-compliance.
Google has now removed the Copiepresse members' content, as I
understand it. However, there were other media organisations that
supported Copiepresse's claim in the court and the court set a
penalty for infringements of their members' work. This penalty
strikes me as inconsistent with the court's rejection of an implied
licence to copy because it seems to place the onus on these content
owners to notify Google by emailing a particular address that an
infringement has been spotted – and Google then has a grace period
of 24 hours in which to stop that infringement. If it fails, Google
pays €1,000 for each day that the infringement continues. But for
the appearance of the work in Google News or Google's cache in the
first place, Google is not penalised.
This case was more about money than the technicalities of
copyright law. Copiepresse made clear that it wants paid for its
content appearing in Google News. I can't see Google paying
up. So Copiepresse wins a moral victory but its members will
surely have lost considerable traffic and consequent ad revenue
that Google News brought to their sites. Users will lose
access to some news and the use of the cache function. I can't see
how anyone wins here.
By Struan
Robertson, Editor of OUT-LAW. These are the personal
views of the author and do not necessarily represent the views of
Pinsent Masons.
* 14/02/2007: These final paragraphs have been
updated since the article first appeared last night.
