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Call#: Van Pelt Library HM851 .G65 2006
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.
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.
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.
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.
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.
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.