11 Dec The press vs. Google: Copyright cases to watch
Does Google News – which displays thumbnail images, headlines, and story leads in connection with links to complete news stories on external websites – infringe copyrights in the original photographs and news stories?
• Are headlines and story leads protectable expression or public domain facts?
• If no one’s copyrights are devalued by Google’s conduct, is the conduct defensible as fair use?
• Does availability to direct Google’s “crawlers” to bypass certain Web content, which would prevent its inclusion on Google News, mean that Google’s use is implicitly authorized or licensed by those who fail to employ these electronic means?
These are among the hard questions that may not need to be answered by a U.S. court if Google continues to make deals with news organizations, as it did with the Associated Press and two Belgian groups.
In early August 2006, Google and the AP announced an agreement by which Google would pay for its use of stories and photographs to which the AP owns the copyrights. The details of payment, however, were not disclosed. As reported by ZDNet, Google maintains that the deal does not undermine its position that Google News is non-infringing; rather, the agreement paves the way for a future Google product complementary to Google News.
In late November 2006, Google settled with Sofam and Scam – Belgian associations of, respectively, photographers and journalists – that were suing in Belgium to prevent Google’s use of headlines and text in links to stories from Belgian newspapers. The settlement came shortly before a rehearing of the case, which now is proceeding with three other plaintiffs.
The initial hearing resulted in an order on Sept. 5 that gave Google a choice between removing its links to the complaining newspapers or being fined one million euro per day. Google removed the links. A judgment in the case is expected in late December or early January. In any event, Google’s settlement ensures that Google News Belgium will not run dry of content.
One party that probably is following these developments with more than passing interest is Agence France-Presse, the French news agency that sued Google in federal court in Washington, D.C., on claims analogous to those in the Belgian lawsuit. AFP’s suit, which was filed in May 2005, is still in the discovery phase. Any settlement in this lawsuit likely depends on each party’s estimation of the strength of its legal arguments – discussed below – and its weighing of the benefit of having a favorable decision on the books against the risk of making law that is bad for future disputes or negotiations.
Just the facts?
A fundamental principle of copyright law is that it protects an author’s original expression but not any facts or ideas divorced from that expression. Facts and ideas inhabit the public domain, free for all to use. Google argues, based on this principle, that the headlines and story leads that it displays alongside links on Google News are not subject to copyright protection. This argument is not without merit, but courts need to give careful consideration to the actual text at issue to see if it encompasses protectible expression and not merely facts.
In the U.S. cases, Google also raises the fair use defense to copyright infringement. This defense is a famously amorphous and unpredictable doctrine. The defense requires a multi-factor legal analysis. Of particular importance are the following points:
• Whether the otherwise infringing use is “transformative.”
• Whether the use denies the copyright holder revenue from the work in other markets.
Google News arguably does transform each snippet of text it displays by bringing it together with others in a centralized resource. Whether this use denies the copyright holder revenue, however, is an issue of proof. If the fair use defense is available, then no one would pay a licensing fee to use content in this manner; if the conduct is infringing, a market for the license surely will develop.
Some commentary on the lawsuits has characterized the press agencies’ reliance on copyright law as disingenuous because they would rather be paid than ignored by Google. Holding out for a better deal, however, is not at odds with copyright policy; the right to exclude is meant to enable the holder of that right to negotiate for remuneration.
Although a pop singer might become famous and wealthy by virtue of pirated copies of her album circulating on the streets and the Internet, the pirated copies are no less infringements. No doubt Google does newspapers a service by connecting them to their audience, but this benefit should not negate the value of a news agency’s copyrights as bargaining chips.
Don’t come crawling
Finally, Google argues that copyright owners already have the means to exclude their content from display on Google News by erecting an electronic “no trespassing” sign for Google’s software in the form of a “robots.txt” file. Some say that news sources do not use these files because they know that being indexed by Google does them more good than harm. Others have noted that copyright law in general does not countenance infringement so long as the infringer allows rights holders to “opt out.”
It is no surprise that tough copyright issues raised by the press against Google, involving online dissemination of facts and fair use, are being resolved out of court, particularly in Europe – where defenses to copyright infringement are limited. Some say that the very premise of the World Wide Web is to link and share information, and that Google is merely facilitating the linking. Others argue that Google unjustly profits from the content developed by others. Given the settlements, the debate may continue for quite some time.
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