It Wasn’t A Complete Loss For Google In Its Dismal Belgian Copyright Case – The Court Agreed It Can Index Material Without Explicit Permission, But Must Remove It Within 24 Hours If Asked

Philip M. Stone - February 14, 2007

The win for Google: A Belgian court basically reaffirmed what Google says it does anyway and ruled that if copyright holders ask for their material to be removed from Google News then it be gone within 24 hours or face a €1,000 daily fine. Google says its policy anyway is to remove material when asked (but not necessarily within 24 hours) so now it has a legal timeframe and it knows the penalty for late compliance.

The important point for Google is that it doesn’t have to ask permission first before it indexes, summarizes, and links – the onus is on the copyright holder to ask for inclusion to stop.

The “win” for Copiepresse, the Belgian publishers group: The court of First Instance agreed  copyright is being violated when Google indexes, summarizes, and links to stories, and therefore publishers have the right to order  Google, via email, to stop doing it and if it doesn’t comply within 24 hours there are financial penalties. 

The court made clear that usage when asked to stop is an absolute no-no. “The reproduction and publication of headlines as well as short extracts , and the use of Google’s cache, the publicly available data storage or articles and documents, violate the laws on author’s rights.”

That part of the judgment Google didn’t like. A Google spokesman said, “Google is disappointed with today’s judgment, which we will appeal. We believe that Google News is entirely legal. We only ever show the headlines and a few snippets of text and small thumbnail images. If people want to read the entire story they have to click through to the newspaper’s web site.”

But there are still some uncertainties. There’s an outstanding  €25,000 a day fine for Google’s alleged non-compliance with the Belgian publishers’ request made last year that their material no longer be accessed. The publishers say that’s about 140 days of non-compliance so far and that’s worth to them some €3.5 million. Google says, not so fast.

It claims the fine is valid only from the date the court made its original judgment in September (Google failed to show up for that first court hearing, but was granted another hearing where it was represented and to which this judgment was made). Google says it took down the offending material from its Belgian site within days of the original judgment so if there is any fine it will be in the thousands, not in the millions.

Not so fast, say the Belgian publishers. The 140 days is valid because Google only removed the offending material from its Belgian site but it could be accessed via its other sites around the world. Not so fast, says Google, the Belgian court decision only applied to Google sites in Belgium.  Besides, says Google, the fine is not automatic, the Belgian publishers have to go back to court and ask to have it imposed. Obviously, the lawyers are going to get rich off this one. 

What should be worrying Google is what effect this Belgian case can have on the rest of Europe, and elsewhere. Does it set a precedent within the European Union?

Searchengineland.com quotes Yoram Elkaim, who oversees Google News legal issues in Europe, as saying, “Because of the legal system in most countries, there is no rule of precedence. That means the court here (Belgium) was really asked to apply the law on the specific situation and on the plaintiffs in this situation.”

Be that as it may, there is a general trend in Europe against so-called American globalization (Microsoft and its dealings with the EU can give chapter and verse on that!) and this case is also an indication of how seriously author’s rights are regarded on this side of the Atlantic.  So this judgment could well find favor elsewhere. Similar lawsuits are said to be under preparation in Austria and Italy. And might the EU itself now revisit copyright law?  “It’s something we are looking into with great interest,” a spokesman said.

Google already has given up opening a Danish site because the publishers there asked that their material not be included.

Is there an out-of-court solution to all of this? The Google lawyer says he would like to see a usage deal done ‘without compromising our principles.” Those principles in reality mean finding a way of continuing to operate, but not opening the financial floodgates with every newspaper publisher in Europe asking for money for allowing their stories to be indexed and linked on the search engine.

“To the extent that they would like us to pay just to index their sites as we’ve done before, I don’t think that will happen,” the Google lawyer said more diplomatically. “But if we can find other ways to cooperate, such as more substantial use of their content through maybe a licensing agreement, we wouldn’t rule that out. But just paying for the privilege of showing snippets and links to their sites, we wouldn’t do that.”

Google struck a licensing deal with the Associated Press last year and although the terms have been kept very secret it has, at least, set a precedent that licensing is  possible. Copiepresse takes the position it is willing to allow Google to display Belgian newspaper abstracts for a fee.

Google is also facing a $15 million federal court suit in Washington DC brought by Agence France Presse in 2005. The French claimed they asked Google on numerous occasions to remove AFP copy from Google access but their requests went unheeded. It was only after the lawsuit was filed that AFP copy was withdrawn (not entirely, however, you can still find some AFP stories on Google as stories that appeared in various newspapers).

Google’s prime argument is that newspapers should be happy to be included in the service. It increases their page views – good news for its advertisers. Google says it only indexes the stories and uses small summaries. For the story itself users are sent to the publication’s own site. But the Belgian court ruled that Google does more than that – it captures in a cache free links to news stories that are no longer available excerpt for a fee on the publication’s own site. That’s an important point in Belgium where most newspaper web sites charge for archive stories.

But cut through it all the legalities and pontificating about copyright and at the end of the day it boils down to everyone knowing that Google is the highest valued media company in the world. It has money, lots of money. There is an envy at how well it does, sometimes using other people’s material without any payment and if Google can’t pay, then who can? Everyone wants a share of the bounty. And why not? Simple as that.

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