EU will consider new copyright exception for book scanning projects

OUT-LAW News, 20/10/2009

The European Commission has said that it might introduce a statutory exception to copyright law that would allow libraries to make digital copies of books. Libraries have claimed they need such a right but publishers oppose it.

The Commission has consulted on the copyright law implications of digitising books on a mass scale and has said that libraries and universities are at odds with publishers and authors over how digitisation should be carried out.

The Commission has expressed concern recently that its culture digitisation project, Europeana, might be overtaken by a foreign commercial project, most probably by the Google Books scheme. Google's book digitisation scheme is in the latter stages of negotiation with rights holders on copyright issues.

Reporting the results of its consultation, the Commission said that there was a gulf between the interests of libraries and publishers.

"Broadly speaking two divergent views emerged. Libraries, archives and universities favour the 'public interest' by advocating a more permissive copyright system," said the Commission report. "Publishers, collecting societies and other right holders argue that the best way to improve the dissemination of knowledge and provide users with increased and effective access to works is through licensing agreements."

The Commission said that the main problem facing libraries and universities was the cost of obtaining specific consent for every one of the hundreds of millions of works they will want to digitise. A more cost-efficient method was needed, it said.

The Commission said it would examine the introduction of collective licensing to solve this problem, but would also consider legislating to exempt library activity from copyright law altogether. "The Commission will consider whether there is a need for further initiatives as part of the new strategy including the possible creation of a statutory exception for such digitisation efforts," it said.

"Libraries and academics state that certain exceptions are more important for the knowledge economy than others," said its report on the consultation. "They favour a mandatory set of core 'public interest' exceptions to facilitate 'access to knowledge'. They also expect that these exceptions are not rendered moot by technological protection measures (TPM). The confines of copyright should instead be defined by the legislator," said the report.

"Publishers, collecting societies and other right holders consider that an equally satisfactory result can be achieved by contracts, often tailor-made to cater to new technologies. Publishers state that mandatory exceptions could undermine economic rewards and encourage so-called 'free-riding'," it said.

Google is also locked in a legal battle over its digitisation project. It reached agreement with authors and publishers groups, though, in a deal which still requires US court approval before becoming fully active.

Information Society Commissioner Viviane Reding admitted that the EU was effectively in a race against Google.

"Important digitisation efforts have already started all around the globe. Europe should seize this opportunity to take the lead, and to ensure that books digitisation takes place on the basis of European copyright law, and in full respect of Europe's cultural diversity," she said. "If we act swiftly, pro-competitive European solutions on books digitisation may well be sooner operational than the solutions presently envisaged under the Google Books Settlement in the United States."

Book digitisation projects face the problem of what to do about 'orphan works', books that are still copyright-protected but whose copyright-owner cannot be found.

The Commission said that it would need to research this issue further to find a solution. It said that an exception to copyright law was also one option for orphan works.

"Possible approaches include, inter alia, a legally binding stand-alone instrument on the clearance and mutual recognition of orphan works, an exception to the 2001 Directive, or guidance on cross-border mutual recognition of orphan works," it said.

Google News faces €1 million fine in Brussels

OUT-LAW News,

By Jan Libbenga for The Register. This article has been reproduced with permission.

Recently Google launched its Belgian version of Google News, which scans some 400 Belgian news sites. However, the Belgian newspaper editors were extremely unhappy with the service and demanded some form of agreement or at least financial compensation.

Google disagreed, and argued that it doesn't republish entire articles and that their service is within “fair use” policies. It also allows publishers to opt out of Google News. Most publishers, however, want to be included in Google News because they believe it's a benefit to them and their readers, Google says.

The recent lawsuit was filed only by the publishers of the newspapers Le Soir, La Libre Belgique and La dernière herure. The Dutch-language newspapers in Belgium represented by Reprocopy press haven’t filed a lawsuit yet.

There are currently at least two other lawsuits against Google over its news service: one in the US (District Court of Columbia) and one in France (Paris Commercial Court). Last year, Agence France Presse (AFP) sued Google over inclusion of its content in Google News. Among other things, AFP said Google removed photo credits and copyright notices in violation of federal law. Google then decided to remove all AFP content.

Google settles book search copyright claims, sets up payments system

OUT-LAW News, 29/10/2008

Google has paid $125 million to settle a copyright lawsuit with book publishers and will continue with its programme of scanning and making available millions of books.

The company is working with university libraries to scan their collections to make them available online.

Publishers and authors' groups sued the company, alleging that the scanning and republishing activity infringed the copyright in the books.

Google has now agreed a deal with the authors' groups and publishers which will see it pay out $125 million and put in place a system by which copyright owners and licensees can be paid for subscriptions to the system and book purchases made through it.

A mechanism will be created to ensure that payment is made to rights holders. It will be called the Book Rights Registry. Google will keep 37% of the money paid through that mechanism.

"Holders worldwide of US copyrights can register their works with the Book Rights Registry and receive compensation from institutional subscriptions, book sales, ad revenues and other possible revenue models, as well as a cash payment if their works have already been digitized," said a Google statement.

Google had said that it should have the right to scan books by default under 'fair use' provisions in copyright legislation. Under the agreement, though, commercially-available books will not be displayed in Google Book Search unless the rights-holder requests it. Out-of-print books will be displayed by default, but a rights-holders can ask for its book to be removed at any time.

Google's Book Search facility will digitise the books and make the contents available to universities on an institutional subscription basis. It will also provide free access to US libraries.

Individuals in the US will be able to search the contents of books and preview them. This will include the many books which are still protected by copyright but are out of print and hard to find. They will be able to buy the books through Google's service.

The company was sued by the Authors Guild and five members of the Association of American Publishers. Those companies were McGraw-Hill, Pearson Education and Pearson-owned Penguin, John Wiley & Sons and Simon & Schuster.

"It’s hard work writing a book, and even harder work getting paid for it,” said Roy Blount Jr., president of the Authors Guild. “As a reader and researcher, I’ll be delighted to stop by my local library to browse the stacks of some of the world’s great libraries. As an author, well, we appreciate payment when people use our work. This deal makes good sense.”

“While this agreement is a real win-win for all of us, the real victors are all the readers," said Sergey Brin, co-founder & president of technology at Google. "The tremendous wealth of knowledge that lies within the books of the world will now be at their fingertips.”

The Google Book Search service will make up to 20% of a scanned book available for viewing for free, with the whole book available for a fee.

Google image search infringes copyright, says judge

OUT-LAW News, 22/02/2006

The publisher of adult website and magazine Perfect 10 has won a partial victory in its attempt to prohibit Google from copying and displaying Perfect 10’s copyrighted images in the results pages of its image search tool.

Judge A Howard Matz of the Central District of California ruled that “Google’s creation and public display of 'thumbnails' likely do directly infringe P10’s copyrights” and that he will grant a preliminary injunction on this aspect of the case on 8th March.

Judge Matz also found that Perfect 10 was unlikely to succeed on broader claims that Google was liable for providing links to websites that were using Perfect 10’s copyrighted images without authorisation. He therefore refused to grant a preliminary injunction on this front.

The case, which is likely to be appealed, has not yet been scheduled for trial.

Background

Perfect 10 sued Google in November of 2004, arguing that, under the guise of being a search engine, Google is displaying, free of charge, thousands of copies of the best images from Perfect 10, Playboy, nude scenes from major movies, nude images of supermodels, as well as extremely explicit images of all kinds.

The action, which seeks an unspecified amount of damages, followed a copyright ruling in 2002 relating to a search engine that provided miniature images in search results, known as thumbnails, and linked to the original image framed within the search engine's own site.

On that occasion the court ruled that thumbnails themselves did not infringe copyright because they amounted to "fair use" of the originals.

While Google uses only thumbnails in its search results, the search shows links to sites that use full size versions of the images – in breach of copyright law, says Perfect 10.

Many of these sites make use of Google’s AdSense service, which displays Google adverts, paid for by members of the search engine’s AdWords service. This means that Google is also profiting from third parties’ unauthorised use of Perfect 10’s porn, according to Perfect 10.

The publisher also argues that Google’s thumbnails are of sufficient quality to be used for download onto mobile phones – in competition with a mobile download service licensed from Perfect 10 by the UK’s Fonestarz Media Limited.

The ruling

In a ruling published yesterday, Judge Howard Matz found that Perfect 10 is likely to succeed on the issue of the display of thumbnails, but not on the question of linking to a larger image displayed on infringing sites.

The thumbnails, said the Judge, are a direct infringement of copyright, but may be permitted through the ‘fair use’ defence. But, unlike the 2002 ruling, “Google’s thumbnails lead users to sites that directly benefit Google’s bottom line”. In effect, he said, linking to sites that use Google’s AdSense service makes the thumbnails much more commercial.

Google had argued that it had a policy in place to prevent such web pages being displayed, but had not provided the Court with evidence of how this policy was enforced.

The Judge was also concerned that the Google thumbnails could compete with Fonestarz’ download service.

“Google’s thumbnail images are essentially the same size and of the same quality as the reduced-size images that P10 licenses to Fonestarz,” he explained. “Hence, to the extent that users may choose to download free images to their phone rather than purchase P10’s reduced-size images, Google’s use supersedes P10’s.”

Accordingly the fair use factor favoured Perfect 10 and not Google, said Judge Matz.

He added: “The Court reaches this conclusion despite the enormous public benefit that search engines such as Google provide. Although the Court is reluctant to issue a ruling that might impede the advance of internet technology, and although it is appropriate for courts to consider the immense value to the public of such technologies, existing judicial precedents do not allow such considerations to trump a reasoned analysis of the four fair use factors.”

The Court then considered the question of Google’s liability for secondary copyright infringement – that it knew of, allowed, contributed to and profited from the copyright infringement of Perfect 10’s photos by other websites.

Perfect 10 argued that Google was in a position akin to the original Napster service. When it served as a music-swapping site it was found guilty in 2001 of contributory and vicarious copyright infringement. Napster has since been re-launched as a legal music download site.

The Court disliked the comparison. Google did not “materially contribute” to the infringements by third-party websites.

“Google resembles Napster only in facilitating searches (i.e., helping users find information) – and even then there are significant differences. Whereas Napster dedicated itself to helping users locate audio files found on the otherwise inaccessible hard drives of individual users, Google helps users locate all types of information … found on the entire, publicly accessible web,” said the Judge.

“P10 overstates Google’s actual conduct and confuses search technology with active encouragement and promotion of infringing activity,” he added.

And while Google does benefit from the infringing websites through its AdSense programme, it has little control over those sites. All Google can do is to remove a link to the infringing sites – which do not disappear from the internet and are still accessible.

"While we're disappointed with portions of the ruling, we are pleased with Judge Matz's favourable ruling on linking and other aspects of Google Image Search,” Google spokesman Michael Kwun told the Associated Press. “We anticipate that any preliminary injunction will have no effect on the vast majority of image searches, and will affect only searches related to Perfect 10."

Google is likely to appeal the ruling.

Google ordered to disclose advertiser information

OUT-LAW News, 10/07/2006

Google has been ordered to disclose the identity of one of its advertisers. The High Court has issued the ruling to assist a potential copyright infringement case.

Google had declined to reveal the identity of the advertiser to Helen Grant, who had complained that a Google advert led to a service which she claimed violated her copyright in a forthcoming book. Google did not give the information, but the firm did advise Grant to seek the High Court order forcing it to comply.

Though the case, heard by Justice Rimer, did not hear why Google refused, Rimer said in his judgment that he assumed that it was because of a perceived duty of confidentiality to advertisers.

Grant is a trustee of a group called the Individuals Self-Discovery Trust, which says that it owns copyright in a forthcoming book, Unlock Reality. The book is due to be released in the US and UK in the autumn, said Grant.

Grant said that a search on Google triggered an advert for a site, Realityunlocked.com, which offered a free download of an earlier draft of the book, and that the site violated the Trust's copyright.

Google refused to pass on the details but advised Grant to follow the lead of Norwich Pharmacal in the1970s in seeking a High Court order to force the internet search giant to disclose the information. Grant did that and Google told the court that it would not oppose the order to disclose.

"For reasons shortly explained, I am satisfied that this is a case in which Google has become mixed up in the apparent wrongdoing of others and that it is in a position to disclose the identity of those others to the Trust," said Judge Rimer in his decision. "I will make an Order accordingly. I consider, however, as is usual in these applications that the claimant must undertake to pay Google's proper costs of providing the requested information."

Europe's Google privacy verdict delayed

OUT-LAW News, 12/10/2007

European data protection officials will not pass verdict on Google's privacy policies until early 2008, an official has said. The Article 29 Working Party met this week and decided to delay issuing an opinion while it widened its investigation.

The Working Party is a collection of Europe's data protection authorities, and it has been critical of Google's privacy policies, particularly in relation to the storing of data which links people to their search engine queries.

Google dominates internet search across Europe and the Working Party launched an investigation into the company's privacy policies and intends to publish an opinion on them. But an official told Reuters news agency that it would not be published for some months.

"We have written to Google to say that we are continuing our work, that it is not limited to Google, and that we will adopt an opinion at the beginning of 2008," an official told Reuters following this week's meeting. "We want to adopt a comprehensive opinion, saying how long they can keep data, and which ones."

Google provoked a storm of protest early this year when it said that it would no longer keep search identifiers indefinitely, and would delete them after between 18 and 24 months. That announcement only highlighted the fact that the identifiers were kept at all, and led to condemnation even of the reduced retention period.

Google compromised, saying it would delete the records after 18 months, but privacy officials still said that there was no need to keep records for that long.

Google privacy chief Peter Fleischer said that it had to keep the records because the EU's Data Retention Directive mandated it. However, a data protection official has said that the Directive does not apply to those records.

"The Data Retention Directive applies only to providers of publicly available electronic communications services or of public communication networks and not to search engine systems," senior EU data protection official Philippos Mitletton told OUT-LAW.COM. "Accordingly, Google is not subject to this Directive as far as it concerns the search engine part of its applications and has no obligations thereof."

Is Google legal?

OUT-LAW News, 27/10/2006

FEATURE: A Belgian court ruled against Google’s use of newspaper stories in early September. If you believe Google, it did nothing wrong and failed to defend itself because it was unaware of the publishers’ lawsuit. If you believe the publishers, Google is lying and infringes copyright on a colossal scale. The parties return to court on 23rd November in a case that finds legal uncertainty looming over the world’s leading search engines.

The case focused on Google’s news aggregation service, which automatically scans the websites of newspapers, extracting headlines and snippets of text from each story. These are displayed at Google News and the headlines link users to the full stories on the source sites. Newspaper group Copiepresse, which represents leading Belgian, French and German publications, said this amounted to copyright infringement and a breach of database rules because its members had not been asked for permission.

Copiepresse could have stopped Google without going to court but chose not to. Instead, it wants Google to continue directing traffic to its sites – and it wants Google to pay for the privilege.

The court also ruled that Google’s cache, which is not part of Google News, infringed copyright.

When a person performs a search at Google, results are displayed with a link to the page on the third party site and also a link to a ‘cached’ copy of the same page stored at Google’s own site. The newspapers say this copy undermines their sale of archive stories. Why buy an archived story if you can find it in Google’s cache? Again, newspapers could have stopped their pages being cached.

Margaret Boribon, Secretary General of Copiepresse, told OUT-LAW that Google’s behaviour is “totally illegal” because it does not seek permission before extracting content for Google News or copying pages to its cache. Google disagrees.

Understanding Google’s position within the law means understanding how the search engine works.

Google uses an automated program to crawl across the internet, known as its Googlebot. It locates billions of pages and copies each one to its index. In doing so it breaks the page into tiny pieces, analysing and cross-referencing every element. That index is what Google interrogates to return search results for users. When the Googlebot visits a page, it also takes a snapshot that is stored in Google’s cache, a separate archive that lets users see how a page looked the last time the Googlebot visited.

It is easy for a website to keep Googlebot or other search engine robots away from all or particular pages. A standard has existed since 1994 called the robots exclusion standard.

Add ‘/robots.txt’ to the end of any site’s web address and you’ll find that site’s instructions for search engines. Google also offers a simple way to prevent a page being cached: just write the word ‘NOARCHIVE’ in the code of a page.

When asked why her members’ news sites didn’t follow these steps to exclude Google, Boribon replied, “then you admit that their reasoning is correct.” She said all search engines should obtain permission before indexing pages that carry copyright notices.

But the real reason for not opting-out with a robots.txt file or mandating against caching is that Belgium’s newspapers want to be indexed by Google. “Yes, we have a problem with Google, but we don’t want to be out of Google,” Boribon said. “We want Google to respect the rules. If Google wanted to index us, they need to ask.”

Copiepresse also wants Google to pay for indexing sites. Boribon declined to discuss how or how much. “That has to be negotiated,” she said.

The argument is not unique. The World Association of Newspapers (WAN), which represents 18,000 newspapers in 102 countries, said in January it would “explore ways to challenge the exploitation of content by search engines without fair compensation to copyright owners.”

At that time, WAN did not have a strategy for challenge. Copiepresse did. It took direct action and convinced the Brussels Court of First Instance to order Google to withdraw from its sites all the articles and photographs of Copiepresse member sites. Google was given 10 days to comply with the threat of a €1 million fine for each day of delay.

Since the ruling, Google has pulled the plug on the news sites in the lawsuit. They are not just missing from Google News Belgium, they have disappeared from Google’s main index and cache too.

“They have done it to punish us,” said Boribon, who didn’t want Google to go that far. “They have a bad attitude.” Yet Boribon went on to complain that some of her members’ content can still be accessed via Google News France. “They don’t apply the judgment fully so we will ask for the fine,” she said.

Boribon does not seem to think she is cutting off her nose to spite her face. “What I’m achieving now is getting all the information to my European colleagues so we will have other publishers taking part in the court case. Then maybe Google will change its mind. If they see this is not a Belgian case but a concern for all publishers all over the world, they will have to review their business model.”

Her hope is that if enough publishers withdraw their content, Google will have significantly less content to index – and that will force it to the negotiating table.

Copiepresse is using the law as leverage in a commercial argument: its content contributes to Google’s $10 billion-a-year in revenue and newspapers want a cut. That argument should not focus on Google News because Google News does not display ads. It is only when newspapers’ pages appear in the results of the main search engine that Google serves the ads that fuel the $125 billion company.

Copiepresse told the court that Google damages the publishers’ ad revenue by bypassing their homepages. “We want search engines to send people to our homepage,” she said, explaining that only the homepage always carries ads.

Google says its practices are lawful. It acts as an intermediary that connects users to sites. Europe’s Copyright Directive and E-commerce Directive recognise the role of intermediaries and afford them special legal protection, including a special right for intermediaries to cache material. Confusingly, however, Google’s cache may not be what the lawmakers had in mind.

Internet service providers use caches to save bandwidth on delivering frequently-accessed web pages. Rather than deliver a live page, it is more efficient to deliver a cached copy to customers. The customer will never know the difference because the cached copy is updated when the live page changes. The E-commerce Directive doesn’t distinguish internet service providers from search engine service providers. Instead it says “a service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service”. There are other conditions, including that “the provider does not modify the information” and that “the provider complies with conditions on access to the information”.

Google has explained the purpose of its cache before, when the function was challenged in a US court in January. Google listed three purposes for the Nevada District Court: it allows users to view pages that the user cannot access directly, perhaps because the destination site has gone down; it allows users to make comparisons between a live and cached web page; and it allows users to identify search query terms (which are highlighted wherever they appear in the cached page). Copiepresse might argue that these purposes go too far beyond the Directive’s “sole purpose of making more efficient the information’s onward transmission to other recipients of the service”.

Even the legality of the primary search function of a search engine is open to question. The Directive’s condition that a provider “does not modify the information” is arguably breached as soon as a search engine breaks a page into tiny elements for analysis and cross-referencing in its gigantic index. That argument was not raised in court but would cut to the heart of almost any search engine’s operation.

Google won the Nevada case. Its opponent, a lawyer called Blake Field, had “decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Google’s standard practice,” according to Judge Robert Jones. Field knew how the system worked and he placed copyrighted articles on his site, waiting for Google to find and cache his work. When it did, he sued.

The court endorsed Google’s opt-out approach: because Field knew about the robots protocol and the NOARCHIVE command, Field’s conduct was interpreted by Judge Jones “as the grant of a licence to Google for that use.”

Google could use the implied licence argument when the Copiepresse case returns to court. The robot exclusion standard has been around for 12 years; Google could argue acquiescence.

Field also argued that Google’s cache was not “intermediate and temporary storage”, as required by a US law. Judge Jones said that Google’s caching for approximately 14–20 days at a time is temporary. That may or may not influence a European court if it has to decide the same issue: the wording is common to laws on both sides of the Atlantic.

If the legality of the cache is uncertain, the legality of Google News is no clearer. The Belgian court heard that it is an information portal , not a search engine. It uses 4,500 English-language news sources and a few hundred Belgian sources, in many cases without prior permission. Google says that’s okay.

“Copyright law allows for snippets to be published from results,” Google spokesman D-J Collins told OUT-LAW. “That’s why we have argued that the court order was flawed. Google News does not break copyright law.”

Copiepresse disagrees with Google’s view that snippets of text are unprotected. Copyright only protects against substantial copying; but publishers would argue that a snippet can be substantial in a qualitative sense, just as courts will protect short samples from songs. Google takes each story’s headline – the craft of a subeditor; and sometimes the entire first sentence or more from the intro – the most labour-intensive part of a journalist’s writing. The legality has never been fully resolved.

The publishers might also argue that thousands of snippets in aggregate amount to substantial copying in a quantitative sense. Google might counter that it is taking only one

snippet of each copyright work – i.e. its thousands of snippets are from thousands of works, not one work.

The Belgian court found that Google had also infringed database laws. The EU’s Database Directive says that the repeated and systematic extraction of insubstantial parts of a database can amount to infringement of a database right.

Some courts have characterised websites as databases and ruled against sites that aggregate content. But that was before controversial rulings by the European Court of Justice in 2004 over the use of horseracing and football fixtures data.

The upshot: many databases are only protected if the owners do not ‘create’ their own data but obtain the data from others.

Google told OUT-LAW that it does not believe that Google News breaks this database law. It did not elaborate, but might argue that a newspaper’s site is not a protected database because the database right does not cover the investment in creating the news; it would only cover the obtaining of news from others. It might say that there is no systematic extraction of a single database; it is systematic extraction from lots of databases. But publishers could argue that news stories are not the same as raw facts such as when two football teams will play each other; and that their websites are not a mere byproduct of investment, unlike the databases in the fixtures cases.

WAN and other publisher groups will watch the rematch between Copiepresse and Google with interest. A week after the September ruling they identified the strategy that they had been seeking since January: the Automated Content Access Protocol, or ACAP.

A briefing paper was sent to OUT-LAW. It describes a system very similar to the robots exclusion standard: “a standardised way of describing the permissions which apply to a website or webpage so that it can be decoded by a dumb machine without the help of an expensive lawyer.”

Angela Mills, executive director of the European Publishers’ Council, told OUT-LAW: “This isn’t about blocking content, it’s about enabling it but with more sophisticated rules than are currently possible. Right now we can say ‘don’t index’ – but that’s not sophisticated enough. It’s very boring to have the choice of yes or no.”

ACAP might say that text can be taken but not images; or that images can be taken on condition that the photographer’s name appears. Demanding payment for indexing might also be part of the protocol, said Mills.

The plan is for ACAP to be a voluntary system. “If people wanted to ignore the rights expression they could,” Mills said, “but that obviously puts them in a much weaker position if challenged in court.”

When asked what it thought of ACAP, Google’s Collins told OUT-LAW, “We welcome any initiative that enables search engines and publishers to work together more closely. We look forward to discussing this proposal with the WAN and in particular how it can build on robots.txt”. But asked if Google would pay publishers to index their content, Collins replied, “That’s not something we do.”

This feature, by OUT-LAW Editor Struan Robertson,originally appeared in Issue 15 of OUT-LAW Magazine. If you don't already receive the 16-page Magazine, you can get a free subscription. Contact: struan.robertson@out-law.com. 

Google partially settles Belgian copyright case

OUT-LAW News, 27/11/2006

Google has settled with two media agencies in a Belgian copyright case which could change the face of its Google News service. It has not yet settled with the group that started the law suit, Copiepresse.

Google has come to an undisclosed arrangement with SORAM and SCAM, two societies representing photographers and journalists respectively. The groups had joined Copiepresse's copyright infringement action against Google over its Google News service.

Copiepresse represents some Belgian newspapers and it took Google to court earlier this year alleging that its Google News service, which publishes snippets of and links to newspaper stories, broke copyright law by copying snippets of stories without the permission of the newspapers.

It won a judgment in a Belgian court in September in which Google was told to remove its members' stories from Google News or pay a €1 million a day fine. Google asked for a re-hearing of that case. That hearing took place last Friday.

SOFAM and SCAM had joined Copiepresse's legal action but have now cut a deal. "Google is delighted that SOFAM and SCAM have decided not to pursue this litigation," a Google spokeswoman told OUT-LAW. "The agreement we have reached with both these authors' societies will enable us to make extensive use of their content in innovative new ways beyond what copyright law allows without the permission of authors."

"Google respects copyright law, which we believe lies at the heart of the creative process," she said. "As today's agreement demonstrates our approach is to work in partnership with content creators and owners"

Google did not say whether it had paid the groups or agreed to future payments, nor did it say whether or not it was negotiating with newspaper groups to either pay or cut an ad revenue share deal.

Though Google News does not carry advertising, Google's search results pages do. Copiepresse's case objects not just to the Google News service but also to the copying and local storing of web pages by the search engine, accessible to users by the 'Cached' link in Google's search results.

Google has argued that it does not think that it has broken the law because it uses just small parts of each article in Google News, which it says copyright law allows. "It is important to remember that Google News never shows more than the headlines, 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 website," the spokeswoman.

Margaret Boribon, the general secretary of Copiepresse, previously told OUT-LAW that it would seek to take action against other news aggregators. "The law is the law. We are producing protected works and the law in Europe says clearly that to re-use that content you have to ask for permission," said Boribon. "We want every search engine, aggregator or re-user of our content to respect it and to ask for agreement and to pay a fair price."

Google resumes linking to Belgian newspaper sites

OUT-LAW News, 03/05/2007

Google and Belgian newspaper group Copiepresse have come to an agreement on a minor part of their dispute over copyright, but have not agreed on the major point of difference between them.

Copiepresse members will use an automated system to keep Google from saving its content in its cache, but that is a technical fix that has always been available to the group.

References to the 17 newspapers represented by Copiepresse will return to the normal Google search engine, but their stories will not yet return to the Google News service.

The actual websites of the newspapers will be findable on Google, but the content will be protected by a 'noarchive' tag.

"The websites of the Belgian French and German-language daily press will now appear without a 'cached' link in the search results of Google's search engine, thanks to their use of the 'noarchive' tag," said a statement from Copiepresse and Google.

Copiepresse won a Belgian court case earlier this year in which it argued that Google's use of its members' headlines and news stories on the Google News service infringed their copyright. It also objected to the practice of Google's caching material, which involves saving it on Google servers for delivery to viewers independently of the newspaper websites.

"This decision was made jointly by Google and Copiepresse as part of the constructive dialogue that has resumed between the two organizations," said the statement. "The Belgian French and German language daily press publishers and Google intend to use a quiet period in the court dispute to continue their efforts to identify tangible ways to collaborate in the long term."

After the Belgian court's ruling, Google removed its links to the newspapers' websites. Those links have now been restored.

In its lawsuit Copiepresse wanted Google to seek permission to use any content but did want members to be able to choose for their content to appear in Google News. Google News does not host entire articles, but sends readers to the newspaper websites themselves.

Google insists that its Google News service is lawful because it publishes so little of each story. It says it removes any material on request from the copyright owner. It is appealing the ruling of the Belgian Court of First Instance.

Why the Belgian court ruled against Google

OUT-LAW News, 13/02/2007

EDITORIAL: Every search engine should obtain permission from a website before copying its pages or even snippets of text, according to a ruling by a Belgian court today.

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.

Belgian newspapers seek up to €49 million from Google in damages

OUT-LAW News, 28/05/2008

The group of Belgian newspapers which is suing Google over its Google News service claims that Google's alleged infringements have cost its members up to €49 million. The group, Copiepresse, wants Google to pay €4 million immediately.

Copiepresse is suing Google for copyright infringement in part because it believes that Google's copying of pages breaks the law. Google's search engine offers links to the websites it indexes but also to 'cached' copies of those pages. The copies are stored on Google's own servers. It is also suing because it believes that Google News's republishing of headlines and story snippets infringes copyright.

The Court of First Instance in Belgium ruled in February last year that Google had to stop republishing parts of Copiepresse members' material, and said that the company would be fined €25,000 a day for any continuing infringement. Google said it would appeal.

Copiepresse asked Professor Alain Berenboom of the Free University of Brussels to assess how much material was stored and reproduced by Google without its members' permission, and what its members' losses from that activity was.

Berenboom found that the losses attributable to that activity were between €32.8 million and €49.2 million for a single year, and that it would be for the Court to decide which figure to choose as the damages to be paid to Copiepresse members.

"It must be noted that these assessments have been made for one single year only and do not target, as far as 'Google Search' is concerned, the entire period not covered by statutory limitation (ie. 5 years)," said a Copiepresse statement to the Court.

Google had asked to be exempted from copyright law under fair use principles, but the Court denied the company that right in February.

Google said that the figure for damages had no basis.

"We strongly believe that Google News and Google web search are legal, and that we have not violated Copiepresse's copyright," said a spokesperson. "This is why we are appealing the February 2007 ruling. We consider that this new claim for past damages is groundless and we intend to vigorously challenge it."

Copiepresse said in its Court-submitted document that Google may well want to challenge Berenboom's figures, and that a panel of Belgian legal experts should be called on if it did want to challenge the figures.

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