Can publishers own the news? Can you profit from the news written by others by providing a site consisting of links to the complete articles as posted on the Internet? Google News has thrust these questions into the discussion of copyright law. With the Google News service, Google unilaterally provides Internet users with content from newspaper publishers worldwide, including content owned by French based Agence France Presse (AFP). AFP ardently has asserted in the District Court of Washington DC that publishers, not Google, own the materials Google provides Internet users. Google through Google News in effect steals the copyrighted photographs, headlines and story leads, injuring AFP. In response, Google contends that the limited material posted on Google News constitutes fair use. Google provides links to the full content and does not steal the content, but rather transforms the content to increase the traffic to the linked sites. The AFP challenge to the Google News service raises important questions of copyright law fair use, underscores that the resolution of the question may differ depending on the jurisdiction whose law applies and, ultimately if not settled, will determine the scope of information that can be publicly disseminated over the Internet without permission. In this multinational context, courts must balance the advances of new technology, with the interest both of the copyright owners and of the public in the news and knowledge, generally. While copyright laws should not be ignored by new technology businesses, copyright law does need to be balanced against applicable public policies. In the United States, the public policy of encouraging access to the public to news information, in effect, to history, will be an important consideration of how the copyright law applies. While certain aspects of Google News may constitute copyright infringement even in the United States, much of Google News should be viewed as fair use and in furtherance of the broad dissemination of knowledge. This same conclusion may not be reached in other countries which do not emphasize the public policy of encouraging access by the public to news information.

Agence France Presse v. Google, Inc. Complaint, dated March 17, 2005, Federal District Court District of Columbia

France based Agence France Presses (AFP) sued Google Inc, an Internet Search engine operator, for alleged copyright infringement arising from Google’s news aggregation search tool, Google News.

According to AFP’s Complaint, Google News service is not a news service, but rather a collection of news stories and photographs from news sources across the Internet. Users can type in search terms and Google News will return stories demarcated by a “headline in bold and large letters,” underneath which is the name of the news service. Below the bolded headline, Google News provides two lines of the story lead. Lastly, Google News places an illustrative photograph to the right of the story information, which AFP claims “is the section’s most dominating feature.” AFP further contends that headlines and story leads “are original,” copyrightable material, intrinsic to the full news story. Significantly, Google News follows these copyrighted materials with references to other articles on the same topic by other news sources. AFP alleges that Google News infringes AFP’s copyrighted content without its permission. The AFP lawsuit further alleges that the use of AFP photographs, headlines and story leads on the Google News service is not transformative, not fair use and, consequently, unequivocally illegal under copyright law. AFP accuses Google News of directly undercutting AFP’s business by providing AFP content – photos, headlines and leads – free of charge. AFP asserts that paying customers “would have no reason to subscribe directly to AFP’s services,” if Google News is allowed to continue. As a result, AFP requests that the court order Google immediately to stop using AFP properties on Google News. As damages, AFP requests no less than $17,500,000 in statutory damages for copyright infringement, and possibly more, depending on the number of infringements proven.

While Google News has certainly used the photographs, headlines and story leads of AFP, the legal question to be resolved is whether or not the use of this content constitutes fair use, is transformative, and whether or not headlines and leads are copyright protected at all. Integral to the copyright analysis is the question of whether Google News actually generates more traffic to the AFP articles, creating more revenue, not less revenue as AFP contends. Certainly, it appears that much of what Google News offers, such as headlines and links, does not constitute copyright infringement under United States copyright fair use principles, although as with other Google services, Google may be pushing into uncharted territory with the use by Google News of thumbnail photographs and story leads.

Belgian Court Order in Copiepresse Litigation in Belgium. 8 September, 2006.

In September 2006, a Belgian Court ordered in response to a suit for copyright infringement brought by Belgium copyright firm Copiepresse that Google had no right to publish online properties represented by Copiepresse. Copiepresse based its suit on the Belgium copyright laws of 1994 and 2005 and the database law of 1998. Google did not appear at the hearing. Further proceedings were scheduled for a later date.

Google News, according to the Belgiam Court, receives search terms from users and returns automated results that ignore whether or not the news item returned is protected by copyright. As a result, the Belgium Court treated Google News as providing news content, not acting merely as a search engine. The Court held that Google News’s use of the copyrighted materials is illegal under the copyright law and database law. Moreover, Google’s caching is reprehensible and literally causing news agencies to “lose control of their web sites and their contents.” In caching websites, according to the Court, Google leverages its massive infrastructure to essentially create a local copy of the Internet. Consequently, if a newspaper publisher pulls an article off the Internet or charges for access to article archives, Google News users might still be able to see the article free of charge through a cached link. The caching process evades the newspaper publisher’s right to control its copyrighted materials.

Ultimately the Court ruled that Google News caused great financial loss to Copiepresse and would cause great harm to news services across Europe. The Court ordered Google to withdraw the cached articles, not to reference any of the five entities Copiepresse represented at all, to post the Court Order on Google Belgium and Google Belgium News, and that if Google did not comply with the Court Order to incur damages of $1 million euros a day.

While this Order addresses the effect of Google News under Belgium law, the case does not address United States copyright law raised in the AFP litigation. Fundamentally, though, this decision and lawsuit raises the question of whether Google News properly should be viewed as a search engine that organizes news or a source of news and whether Google News may be legitimately lawful under the law of one country but not under the law of another country.

**Update: Google appears headed to a settlement with Copiepresse. Neither side has provided the financial details of the agreement. On November 28, the Copiepresse secretary general stated, "The Internet is not the Wild West…We want to be part of Google, but not without control over our content.'' For its part, Google commented that without Copiepresse content, their Belgian news coverage was lacking and insufficient.

Schmidt, Eric. “Conversation with Eric Schmidt Hosted by Danny Sullivan,” interview by Danny Sullivan (9 August 2006) (http://www.google.com/press/podium/ses2006.html) (last accessed 26 November 2006).

In this interview of Google CEO, Eric Schmidt, by Danny Sullivan at the Search Engine Strategies Conference, Schmidt discusses issues facing Google. He addresses everything from click fraud to protecting user private data. Ultimately, Schmidt underscores Google commitment to provide to Internet users the most relevant information, whether it is news, ad-content or search results. He does confess to a new emphasis on profitability.

Most relevantly, Schmidt addresses the pending lawsuit with AFP. Schmidt asserts that Google understands and wants to be sensitive to various conceptions of rights and copyrights. Schmidt also admits that there is an underlying ambiguity associated with fair use but appears to remain firmly committed to Google’s definition of fair use. Schmidt asserts that Google’s use of parts or snippets of copyrighted materials, like books and news, is not only fair use, but a vital research and knowledge tool. In the interview, Sullivan, expressly asks Schmidt about the AFP lawsuit, and whether the deal between Google and the Associated Press was made to “solve a legal issue.” Interestingly, Schmidt answers that for Google, litigation is just another way of making a business deal. In other words, the AFP lawsuit was not unexpected, but rather something Google understood might occur given its new use of technology. The deal between Google and AP addresses these same issues in a different way – a way that attempts to foreclose litigation and to reach an amicable resolution of essentially the same issue.

            Despite its altruistic mission of making relevant knowledge available worldwide, Google is ultimately a profit making corporation. Schmidt’s comments reveal that Google’s rise from search engine to a dominant corporation rests in its aggressive and liberal interpretation of fair use. Thus, the dispute with AFP could be settled if Google could reach a satisfactory monetary agreement with AFP as it did with the AP. No matter what social cause the EFF or other bloggers ring regarding the global importance of Google and free speech and the public’s right to knowledge, Google is just another company trying to impress its shareholders with its profitability.

Samuelson, Pamela. “Economic and Constitutional Influences on Copyright Law in the United States.” United States Intellectual Property Law, ed. Hugh Hansen (London: Sweet & Maxwell, 2000).  Available online at http://www.ischool.berkeley.edu/~pam/papers/Sweet&Maxwell_1.htm (last accessed 26 November 2006).

 

Samuelson, a Law Professor at Berkeley and an expert in intellectual property, outlines the differences in ideology between copyright regime in the United States and in Europe.  By looking at economic and constitutional differences between the two copyright systems, Samuelson asserts that the two systems will remain intrinsically different even with the rise of the Internet.

First, Samuelson contends that United States copyright law remains strongly bound to economic incentives, whereas European courts do not consider such criterion.  In Europe, moral rights hold much more importance.  For instance, the Supreme Court of the United States essentially decided the legality of the Sony Betamax case and the VCR based on an economic interpretation of fair use.  It would have been economically inefficient for individuals to negotiate rights to record TV programming. Thus, the only reasonable conclusion was that such behavior was fair use. A European court would not employ the same rationale.  European lawyers criticize the ambiguity and unpredictable nature of fair use under US copyright laws, while American lawyers laud it for being practical and pragmatic.

Second, Americans derive much of their copyright law from the Constitution, a document grounded in economic rational.  Article I, section 8, clause 8, which provides copyrights for limited time to incentive production of public artistic and scientific goods and the First amendment regarding free speech continue to empower American notions of copyright. Obviously, Europeans do not ascribe to the Constitution or the First amendment.  European copyright law focuses on moral right of authorship over doctrinal ideology.

For Google News, what an American court may find to be economically appropriate, a Belgian court might find morally reprehensible.  Samuelson proves that while copyright law might be intrinsic to both countries, there remain irreconcilable differences.  Google must understand the local laws of the countries in which its content will be shown.  What one country considers news, the other might consider stolen copyrighted works.

Hoffman, Bob. “How the AFP/Google Lawsuit Could Destroy the Blogosphere.” Search Engine Guide. 25 March 2005. (http://www.searchengineguide.com/cgi-bin/mt/mt-view.cgi/33/entry/3875/print_version). (last accessed 27 November 2006).

The Google-AFP decision could have a resounding impact across the internet. If headlines and leads are ruled copyrightable material, the ability to write, specifically blog, about the news could be specifically limited. “Bloggers traditionally quote articles and link to them in much the same way Google’s News site does. This means they can no longer do that with AFP news items without threat of a lawsuit,” Bob Hoffman, a “scared” independent journalist, explained. This explains why Matt Drudge, creator of drudereport.com, closely monitors the Copiepresse and Google cases on his site. If the AFP lawsuit is upheld, Drudge’s site, a collection of breaking news stories, could be liable to a continuous barrage of lawsuits as well.

If a ruling in favor of AFP truly signifies the end of the “news” Blogosphere, it will have severe consequences for the state of American Media. Blogs keep news media honest, offering criticism, secondary analysis and fact checking. The only sources of news will be the “big players” who will “completely control the news we see, read, and hear.” Corporations will own the news and its reproduction, and even subtle criticism will not be allowed.

While such a doomsday scenario is unlikely, Hoffman provides a convincing argument as to why commentary and links to the news needs to be considered fair use. The news is vital to our public discourse, and fair and neutral news is crucial to the development of the country and its citizens. It may be, however, that by adding criticism or comment the Drudge Report creates a new product and presents, under at least United States law, a differing analysis of fair use. A decision fully upholding AFP’s claims against Google will not necessarily undermine the Blogosphere. Yet, the impact of a decision on the Blogosphere does highlight the need to consider the public interest in any copyright analysis under United States copyright law. But particularly with the element of public interest, the fair use analysis could differ significantly among different jurisdictions.

David R. Johnson and David Post. "Law and Borders-- the Rise of Law in Cyberspace." Stanford Law Review 48 (May 1996): 1367-1402.

                David Johnson and David Post discuss the early difficulties (1996) in conceptualizing law in cyberspace. Borders in cyberspace are defined legally in terms of “screens and passwords that separate the tangible from the virtual world,” rather than physical and territorial boundaries that have traditionally defined legal doctrines. The authors hypothesize that without accustomed territorial boundaries, cyber law will develop independent of the usual local government regulation and authority and require a new type of thinking. To support this thesis, Johnson and Post reference the terms of service agreements offered by contemporary online service providers America Online and CompuServe as a type of law that would be enforceable, regardless of whether the agreeing user logged in from the United States, France, or Belgium.

                Specifically, Johnson and Post discuss the emergence of and difficulty in constructing Copyright Law in cyberspace. Quoting law professor and copyright expert Jane Ginsburg, Johnson and Post explain the troubling task of deciphering copyright laws given an infinite number of countries. Ginsberg asks, “Without physical territoriality can legal territoriality persist?” (1834). In this context, Johnson and Post describe an explanation of the purpose of copyright law as the creation of a demand for works that can be sold and serve the public’s desire for knowledge (1384). The internet has created a mechanism to publish and view news easier and quicker than ever before in history. While regulating the dissemination of these works is complex, the crucial part of this process is to foster “a relationship” (1385). Most notably, Johnson and Post, assert the “ubiquity” of “copying” in cyberspace creating new notions of Intellectual Property. Every time you access a file online, your computer creates a local copy and this has important consequences for the concept of the “first sale’ doctrine” and fair use in copyright law (1386). Ultimately, these authors contend that new laws and conceptions of law must be developed to tackle the issues that will arise in cyberspace. Most relevant of the notions that Johnson and Post assert is how the use of caching of Google News constitutes a fair use, because users do it automatically.

                The notion, however, that copyright laws as they now stand can not address the Internet does not stand up to scrutiny. Rather, it is the copyright owners that need to better assess the benefits of new technologies and the technology companies that need to better create new products while respecting existing copyright law. The law appears more than capable of addressing the issues even if the results might be different in different countries. There exist ways for technology providers to alter their systems to meet the differing legal requirements of differing countries.

Press Release of World Association of Newspapers. 31 January, 2006. (http://www.wan-press.org/print.php3?id_article=9055) (last accessed 27 November 2006).

                In this press release, the Paris based World Association of Newspapers (WAM), representing a membership of eighteen thousand newspapers worldwide, including AFP, seeks to address the issues facing newspapers resulting from new technologies. In particular, in the WAM press release, WAM discusses the ‘Napsterisation' of newspaper content. More explicitly, the group expresses a desire to counteract "the exploitation" by Google News and other search providers of copyrighted news articles. While Google, Yahoo and other search engines hide behind a guise of social benevolence, WAN asserts that these search engines do not represent "Robin Hoods," but rather highly profit oriented organizations that are seeking to misuse the hard work and copyrighted content of newspapers. Ultimately, WAN seeks to craft a relationship between newspaper publishers and search engines that would prove profitable and legal for both parties involved. WAM appears to understand that newspapers must adopt to technology, but at the same time WAM seeks to have that adaptation involve compensation by the search engines to the newspapers.

                As a reflection of WAM's ultimate objective, Google and the Associated Press agreed to a deal in August of 2006 that would compensate AP when Google News used its assets. Google justified the deal with AP in that the AP content licensed Google assets would complement Google News. Google News would remain a news aggregator that linked to news sites, which Google adamantly considers a fair use.

                Similarly, in November of 2006 Yahoo! struck a deal with over 150 United States newspapers. The agreement announces that Yahoo's technological leadership, specifically search, advertising and infrastructure, will be partnered with the leading newspaper content in the United States. The partnership plan will allow Yahoo! users access to personalized local news, such as classifieds.

As evidenced by these deals, the presence of Google News and Yahoo! should ultimately make newspapers more profitable, not less. Users should click through links on Google News and on Yahoo! more frequently than before, thus, raising the page views, revenue and attractiveness of newspapers. Although the recording industry may have been technically correct on the copyright violations Napster committed, ultimately by not adopting to technology changes, the recording industry has been eroded and not been the driver of change. News services and newspapers must consider how to adapt to changes brought on by technology, not merely fight changes technology brings.

Perfect 10 v. Google, Inc. Order by United States District Court of California. February 2006.

In August 2005, Perfect 10 sued Google and Amazon for displaying thumb nail images. Perfect 10, an adult photography company, makes money by selling rights to copyrighted material. Perfect 10 sought an injunction and compensation from Google on the grounds that Google was illegally displaying thumbnail images of copyrighted Perfect 10 photos and linking to third party sites that further illegally host copyrighted materials. Google asserts that it does not infringe directly because it does not create the image that the image search pulls up and displays.

The court issued a preliminary injunction ruling that the thumbnail images from a Google image search did constitute copyright infringement, but the links provided to the full images did not. Google admitted that it created and stored the thumbnail images on its own servers. Thus, as to the thumbnails, Google distributed infringing copies of Perfect 10’s images. The links to the full size photographs do not involve any creation or dissemination even though there is a local browser caching. This local browser caching constitutes fair use. The court found that the use of the thumbnails was not fair use since Google made money from their creation and the thumbnails were not transformative because P10 also licenses thumbnail images. Thus, users could circumvent P10’s licenses by downloading the free thumbnails. The Court did note that Google does “provide great value to the public” as a search engine, stating that “search engines have become essential sources of vital information for individuals, government, non-profits and businesses….” Ultimately, Google’s thumbnail images did economically harm the value of the P10 images. Thus, the Court enjoined Google from further dissemination of the thumbnail images. In the case of AFP, Google must clearly not host and serve the image. However, the act of organizing the web and making news more readily available to users, perhaps even with leads and headlines seems reasonable.

Despite the predictions that the Internet would be tool of consensus for the world’s countries, applicable law continue to vary from nation to nation, luckily without impeding the growth of the Internet. Internet traffic, specifically ecommerce and media continue to thrive despite the application of local laws (148). Content providers have adapted to the wants and needs of local users across a variety of cultures and continents (149). There is no concept of universal free speech on the internet – what one country may consider as blasphemy might be the most treasured item of another country (150).

More relevantly, Goldsmith and Wu discuss how a court ruling in one country can be enforced in and intersect with the laws of another country. Using the example of Gutnick v. Dow Jones, in which business man Joseph Gutnick sued Baron’s online magazine, a subsidiary of Dow Jones, for defamation in an Australian court, the authors demonstrate that local law can coexist with the international scope of the Internet. While Gutnick won its defamation lawsuit against Dow Jones in Australia, it did not stop Dow Jones from continuing to have an Internet presence. The decision is not unlike any other decision that impacts a “multinational” business (157). Large corporations that have financial interests across the world like Dow Jones, Google and Yahoo! must be ready to defend their online content and business against the laws of any jurisdiction.

The Internet is not free of regulation just because it does not have the physical tentacles that other aspects of multinational companies do. For example, by operating Google.be and Google.fr, Google has a financial interest and presence in Belgium and France. They must be prepared to either pull their content out of those countries or comply with the laws of these jurisdictions, even if it undermines principles of American law. It is simply the cost of doing business. Smaller companies who have an Internet presence that may reach these same countries but who have no financial assets there will be in a different situation. They will need only to comply with the law of the country where their assets and physical presence can be found. Thus, the copyright law that applies on the Internet is not likely to be uniform but is more likely to reflect the public policies and interests of the local jurisdiction deciding the copyright question.

Easton, Eric B. “Who Owns ‘The First Rough Draft of History?”: Reconsidering Copyright in the News.” Columbia Journal of Law & Arts 27, 4 (2003-2004): 521-563

Can you own the news? Eric B. Easton asserts the moral right and public good of news. Journalism has become increasingly more profit oriented, sometimes at the extent of accuracy. Easton contends that “[j]ournalism as a public service is inexorably being replace by ‘infotainment’ as a commodity” (522). Taking a historical slant, Easton further traces the evolution of the “propertization of news” (523). According to Edwin Baker, copyright law exists to encourage writing. Copyright, though, cannot protect the facts of the news (523). Easton finds the notion that copyright law protects the news troubling; characterizing the “news of the day,” which undeniably would include headlines and leads, as “the first rough draft of history” (524). Headlines, specifically, must be considered factual and completely subject to fair use.

The Internet has had a democratization effect on news. There is more news available and more information than ever before, but there nonetheless is an “absence of a public service ethos in what passes as journalism” (257). In order to rectify this, Easton suggests that all newspaper articles enter the public domain after twenty four hours. The availability in the public domain would assure that all news people involved would be aligned with the public interest and moral rights. Easton points out that technology has created just the opposite effect. Eldred v. Aschcroft and the Digital Millennium Copyright Act have allowed newspaper articles to be taken from the public domain in perpetuity (559).

Easton asserts the public’s right to the news and the consequent endorsement of Google News. Easton contends that the public dissemination of the news underscores the public service notion of journalism rather than the profit notion of journalism. While Easton may be correct as to journalism losing its public service underpinnings in the United States, in many countries journalism has not been thought of as having these underpinnings. Thus, Easton’s analysis does not apply to countries outside the United States and does not properly consider the rights the United States Copyright Laws have conferred on journalists. The public service notion of journalism needs to be an element of public policy considered in the assessment of the legality of Google News, but it can not be the only factor considered. The Copyright Laws as they currently exist in relevant countries must be addressed.