Belgian Copyright Ruling Against Google News

Rand, over at 14th Colony asked about the ruling against Google by the Court of First Instance in Brussels (Belgium), and its translation into English. I found a copy of the ruling at ChillingEffects.org in an image pdf file. I’ve transcribed part of it which details the ruling of the Court in English.

Some interesting points, before the transcription:

Default Judgment?

I see the text “Defendant Defaulting” early on, which might lead one to believe that Google didn’t appear in Court for this hearing. I don’t know if that is true, but the “defaulting” language would lead me to believe that.

Who was the expert the Court depended upon?

The court’s ruling, in part, depends upon a report created by Luc Golvers, an expert who was required to investigate the claims and facts surrounding the litigation. I’d love to see that full report.

Mr Luc Golvers is:

  • A civil engineer
  • A consultant and legal expert in data processing
  • The President of the Belgian Computer Security Club
  • A lecturer at the Université Libre de Bruxelles

No Mentions of Noarchive or Noindex or Robots.txt?

I’m surprised by the lack of mentions of the use of a noarchive meta tag or noindex meta tags or by the use of robots.txt to disallow Google from indexing or archiving the pages of the newpapers in question.

While the Court does note that the onus of keeping copyright from being infringed falls upon the owner of the technology used to take text from the newspapers in question, this seems like an omission worth noting.

Regardless of how the Court may have felt about those options, I think that they should have been addressed in some manner. The failure to do so makes it appear that they either weren’t provided information about those by their expert, or didn’t understand them, or may not have addressed those issues on purpose.

A simple noarchive tag would have kept information on those pages from being cached by Google. A noindex tag or disallow directive should have kept their pages from being indexed at all by Google. Were they using these and Google ignored them? I suspect that they weren’t.

What is the difference between a Search Engine and a Portal and why might it be important?

Part of the expert’s decision was that “Google news must be considered to be an information portal and not a search engine.” What is the difference between the two legally? Is there a difference? If so, why was the notice of the judgment required to appear on both the ‘google.be’ page and the ‘news.google.be’ page?

Is there a difference between news results showing in the search engine, and news results showing in Google News? If news results are ok in the Google search engine (google.be), are cached copies of pages in the search engine ok? I would guess not from the ruling of the Court, but it’s ambiguous enough to be uncertain. One of the harms cited is that people are accessing pages in Google’s cache after those have moved from being publicly accessible to requiring a subscription to view. Those cached copies can be seen in both ‘google.be’ and news.google.be.’

Are cached copies of non-news pages within google.be, from Belgium, to be considered violating copyrights if the sites have copyright notices upon them? It’s impossible to tell from this ruling what implications it might have for those pages.

Extract from the Ruling

The ruling was issued in French and English. What follows is part of the ruling of the Court, in English. See the Chilling Effects link above for the image of the document which contains all of the English text, as well as the French version of the Court’s decision.

Prohibitory Injunction

In the Case of:

The Association in the form of a co-operative society with limited responsibility Copiepresse, registered with the CBE under no. 0471.612.218, with registered office in 1070 Anderlecht, boulevard Paepesern, 22,

Plaintiff.

Represented by Mr. Bernard Magrez, solicitro in 1180 Brussels, avenue Winston Churchill, 149:

Versus:

The company under American law Google Inc., with registered office in Mountain View, 94043 California, USA, 1600 Amphitheatre Park Way,

Defendant
Defaulting

This case has been concluded and pleaded in French at the public hearing of 29th August 2006:

Pursuant to:

- The introductory writ of summons served on 3rd August 2006:

Subject of the Claim

The claim brough before this court is based on article 87 of the law dd. 30th June 1994 regarding copyright and ancillary rights.

It aims:

- To establish that the activities by Google News and the use of the “cache” by Google infringe on, in particular, the laws on copyright and ancillary rights (1991) and the law on data bases (1998);

- To order the defendant to withdraw all the articles, photographs and graphic reproductions from the Belgian publishers of the French and German speaking daily press, represented by the plaintiff, from their sites (Google News and “cache” Google or under any other name), starting from the day of the notification of the order, under penalty of a daily fine of 2,000,000 euros per day of delay;

- To moreover order the defendant to publish, in a clearly visible manner and without any comments from her part, the entire intervening judgment on its ‘google.be’ and ‘news.google.be’ home pages for a continuous period of 20 days, starting from the day of the notification of the order under penalty of a daily fine of 2,000,000 euros per day of delay.

Framework of the Litigation

1. The capacity of the plaintiff

Considering that the plaintiff is the management company of the Belgian publishers of the daily French and German speaking press, authorized to carry out its activities on Belgian territory (by the Ministerial degrees dd. 14th February 2000 and 20th June 2003, published in the Belgian Official Gazetter dd. 10th March 2000 and 14th August 2003);

Considering that its objective is to protect the copyright of its members (actual rights of the publishers and acquired rights of the journalists) and to regulate the use of the protected works of its members by third parties;

Considering that the newpapers and sites of the written press are protected in particular by the laws on copyright (1994 and 2005) and by the law on data bases (1998);

Considering that the production of journalistic work is producted by the classic publication of daily newspapers, supplementary magazines in paper form or, since the arrival of new technologies, in numerical or digital form;

Considering that secondary exploitation is done by the copying of the paper document and, since the emergence of new information and communication techologies, secondary exploitation can be done by electronic procedures (scanning, capture of web sites and redistribution via web sites or internet or extranet or emailing, etc…)

Considering that this secondary exploitation of press articles by electronic means is also regulated by the laws on copyright (1994 – 2005) and by the law on data bases (1990);

Considering that the plaintiff, who represents the interests of the newspaper publishers consequently has interest in and the capacity to act in order to protect their rights;

2. The Facts

Considering that in the course of the year 2003 the Google search engine introduced a new service called Google News or Google Actualite, which is run by the defendant;

Considering that this new feature is aimed at offering internet users an overview of the press based on an automatic selection of new items from web servers of the written press;

That, in order to do this, Google News must search the web servers of the written press and must extract articles there from to copy and/or make automatic summaries, even though the sites where these articles come from, and in particular the sites of the newspaper publishers, whose interest are defended by the plaintiff, carry statements that these sites are protected by copyright;

Considering that Google did not obtain permission from these various sites to proceed with this scheduling of information, which in a way is left to its own discretion as she is the holder of the technology and the algorithms which permit the automation and systematization of the reproduction of articles available on the internet;

Considering that this situation has caused difficulties not only in Belgium but also in other countries;

Considering that in Belgium, the plaintiff filed an application for descriptive distraint base on articles 1481 and following of the Judicial Code with the judge of distraints of this court;

That, by order of 27th March 2006, the expert Luc Golvers was appointed;

Considering that the order regarding his appointment was served on the defendant on 13th April 2006;

3. The report of the appraisal

Considering that the expert Mr. GOLVERS, who had as particular assignment to describe how the press articles are presented and the interactivity between the visitor and the web site of Google News, concludes that “Google news must be considered to be an information portal and not a search engine.”;

He raises that the Google News service describes itself as an online news site, in the following terms: “this variety of perspectives and approaches is unique among online news sites, and we consider it essential in helping you stay informed about the issues that matter most to you.”;

Considering that he notes that the site is fed by news items from the press, which he has proven by carrying out numerous tests from the news sites of different daily French-speaking Belgian newspapers;

Considering that his research has led him to prove that, while an article is still online on the site of the Belgian publisher, Google redirects directly, via the underlying hyperlinks, to the page where the article can be found, but as soon as the article can no longer be seen on the site of the Belgian newspaper publisher, it is possible to obtain the contents of it via the “Cached” hyperlink which then goes back to the contents of the article that Google has registered in the “cached” memory of the gigantic data base which Google keeps within its enormous number of servers;

Considering, finally, that it is deducted from the expert’s report that:

- the way in which the Google News presently operates cause the publishers of the daily press to lose control of their web sites and their contents (of the tests conducted by the expert which show the effects of the withdrawal of an article, pages 42 to 67 of the report);

- The use of Google News circumvents the advertising of the publishers who get a considerable amount of their revenue from these advertisements (pages 13 to 18, 108 to 119 of the report);

- The use of Google News short-circuits many other elements such as reference to the publisher, reference to protection of copyright and reference to the authorization or not of the use of the data, links to other sections (e.g. subject records built up by the publishers, pages 108 to 119 of the report);

4. Identification of the identityof the owner of Google and Google News

Considering that the expert was also charged with the task of establishing the identity of the owner of the DNS ‘Google.be”, ‘Google.fr’, and ‘Google.com’;

Considering that the investigations carried out in that regard (pages 124 to 134) show that the owner of the site ‘news.google.be’ as well as of the domains ‘google.be’ and ‘google.fr.’ are on each occasion the defendant, Google Inc., 1600 Amphitheatre Park Way, Mountain View, California 94043.

5. The harm caused to the plaintiff

Considering that the plaintiff complains that the activities of Google Inc., jeopardize the electronic sale of press articles as well as the daily press and, in the short term, the quality of the articles as the publishers run the risk of not being able to avail of sufficient resources to pay their journalists properly;

That indeed, as the expert’s report has proven, the nature of the defendant’s activity makes the publishers lose a considerable part of their income which stems from sales of advertisements;

That, apart from the immediate financial harm, the electronic sale of articles is threatened, as well as the resources from article archives for which the person who wishes to consult them must pay:

6. Measures sought

Considering the violation of the stipulations on copyright it is justified to order the measures sought by the plaintiff and mention in the enacting terms of the presents

7. Daily fine

Considering that the plaintiff asks the court, in case of breach of the measures from which she benefits, to impose a daily fine of 2,000,000 euros per day of delay in the event that the defendant would not comply with the order to withdraw the articles, photographs and graphic representations from the Belgian publishers of the daily French and German speaking press from all its sites as well as a daily fine of 2,000,000 euros per day of delay if the defendant fails to publish the entire intervening judgement on the home pages of ‘google.be’ and ‘news.google.be’ for a continuous period of 20 days, from the notification of the order;

Considering that the importance of this claim is justified by the fact that the defendant advertises a turnover of almost 13 million dollars per day;

That the plaintiff also highlights the technical capacity of the defendant to withdraw the articles and litigious news items from its data bases and that it would not cause the defendant major problems to comply;

Pursuant to the law dd. 15th June 1935 on the use of languages in judicial matters;

Rejecting all other conclusions other than more extensive or contrary;

Declare the claim admissible and founded as follows;

- Find that the defendant cannot exercise any exception provided in the laws relating to copyright and ancillary rights (1991) and on the law on data bases (1990);

- Find that the activities of Google News and the use of the ‘Google Cached’ violate in particular the laws on copyright and ancillary rights (1994) and the law on data bases (1998)

- Order the defendant to withdraw the articles, photographs and graphic representations of Belgian publishers of the French and German speaking daily press, represented by the plaintiff, from all their sites (Google News and “cache” Google or any other name within 10- days of the notification of the intervening order, under penalty of a daily fine of 1,000,000 euros per day of delay;

- Also order the defendant to publish, in a visible and clean manner and without any commentary from her part the entire intervening judgment on the home pages of ‘google.be’ and of ‘news.google.be’ for a continuous period of 5 days within 10 days of the notification of the intervening order, under penalty of a daily fine of 500,000 euros per day of delay;

Awarding the costs of the expenses of 941.63 euros (summons) and 121.47 euros (costs of the proceedings) against the defendant.

So ruled and pronounced at the public summary hearing dd. 5th September 2006.

Conclusion

It’s difficult to tell what this ruling means for web pages that aren’t “news” sites. Is the use of the Google cache in the Belgian version of the search engine an infringement of copyrights?

Why wasn’t there discussion of robots.txt or noarchives or noindex tags in the Court ruling?

If this was indeed a default judgment, which it appears to have been, why didn’t someone from Google appear at the hearing?

Some Additional Resources on This Topic

Added 9/26/2006

1. Danny Sullivan has some thoughts on this topic (and post) and some links to articles that he wrote previously at: Some Google Belgium Follow-Ups

One of those focuses upon building a business relationship with Google:

Google’s Belgium Fight: Show Me The Money, Not The Opt-Out, Say Publishers

2. Peter Da Vanzo points at a solution for search engines worth exploring: Followup: Google vs. News Sites

3. Joe Dolson looks at some of the intellectual property issues involved: Intellectual Property, Search Engines, and the Law

4. Rachel Whetstone, European Director of Communications and Public Affairs for Google, writes about the case, a future hearing in November, and the use of robots.txt.

5. Some interesting discussion on Threadwatch on this in Google Wimps Out to Belgians, including some excellent points made by fantomaster.

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18 thoughts on “Belgian Copyright Ruling Against Google News”

  1. Wow, it will be interesting to see what the reaction from google will be. My first question would be, what about the other engines, MSN, Yahoo, Ask and the rest?

    Someone as large as Google have the legal team and influence in the international community, but what about small engines like mine (although unrelated to the news topic). I don’t have a team of lawyers and would probably s*^& the bed if a representative from Belgium showed up with a legal notice to appear in a foreign court.

    Why would someone publish something for the world to see, if they didn’t want the world to find it? Makes no sense at all!

    pittfall

  2. Hi Stephen,

    Good question. Why not Yahoo! or Ask or MSN? Is Google an easier target for some reason? Maybe their statement about being “an online news site” or is Google a potentially larger revenue source if these news publishers can force Google to pay them to include their content in Google News?

    A cynical response, perhaps, but it’s pretty easy to use a noarchive tag, or disallow statement in robots.txt.

    I have some questions about the legality of the Google Cache when it comes to copyright. I’m disappointed in the Court ruling in that it doesn’t discuss robots.txt and noarchives.

    And where was Google’s legal team?

  3. Bill,

    I agree with Google being the new kid and a deeper pocket.

    Of course, in our society we have to blame everyone else for us not doing what we should do (like password protect, noarchive or robots.txt)

    Who owns the sites? They have ultimate control, not Google or any other engine.

    Oh well, there goes common sense out the window… again.

    pittfall

  4. The solution looks simple to me – the news sources should noarchive pages so that people can’t access their older pages. Since Google just provides snippets and title, write compelling titles that people will click upon, and advertise intelligently.

    Arguing copyright infringement potentially harms them more than helping them.

  5. One problem with SEs is they put the burden of “hiding” data on the sites and to keep that from happening we have to “opt out”.

    Morally I think an “opt-in” system would be better though I don’t think it’s feasable.

    I like the sound of it, but I’m not sure that it’s feasible either.

    Another question is whether serving titles and snippets is fair use? Is it fair use when those titles and snippers show up on an auto-generated site? Does it make a difference whether those show up on a page that uses a noindex or robots.txt disallow? I think that it does, and that’s the difference between most large search engines showing titles and snippets, and many pages that use that material to spam search engines.

    Since a cache file is a whole copy of a page, it’s a little different than just a snippet and title. Is it still fair use? Maybe. Maybe not. I would like to see a court deciding something like this to actually provide an analysis on the subject instead of what we see from the Court in Brussels.

  6. Bill,

    it’s seems you’re not alone wondering about the “robots.txt” thing.

    Rachel Whetstone, Google’s European Director of Communications and Public Affairs posted on the Official Google blog and talk about it.

  7. Thanks for clarifying Bill. The bit about paid content appearing the the cache was interesting along with the lack of “noindex” info. One problem with SEs is they put the burden of “hiding” data on the sites and to keep that from happening we ave to “opt out”. Morally I think an “opt-in” system would be better though I don’t think it’s feasable.

  8. As a Dutch local I am probably a little closer to the “source”then you guys.

    Let me start by saying that internet is not as much integrated in Belgium as in other countries. Especially not compared to the Netherlands or the US.

    I like the ruling in this case, imho it does make sense: Google is making money of other people’s services. In general publishers condone it because it creates equal opportunities for them as well (reach).

    The fact that the opt out options Google is providing us are not mentioned makes sense to me as well. You can’t breach a law and then say “All they had to do is say no!”. You can’t go round killing people just because they didn’t complain about it either…

    Google was using images and text from newssources that choose to protect their copyright. Google’s claim that all they had to do is ask is complete bullshit. I don’t think the united newssources can make it any more clear then to sue Google but still Google choses to fight the ruling again in November.

    By the way: An important factor in the ruling was that it’s hard for the newssources to influence or control their items (and the access to) if they are spread by Google (cache, news).

    As for the question why not Yahoo, ASK or MSN? Simply because they don’t exist here. Well, they have some sort of presence but their combined marketshare doesn’t even make it till 5% which is almost entirely MSN. And that one does pay it’s newssources…

  9. Thanks, Ulco,

    It’s good to get a perspective from someone who is closer to the source.

    When a Court makes a ruling that something is legal or illegal, it can be helpful if the Court explains its reasoning. Here, it seems like it is OK to use titles and snippets of text for a search engine, but not for a “news portal.” What’s fair use for one, is not fair use for the other.

    It’s harder to tell whether the Court ruled that the use of a cache file is ok when it is a search engine caching pages, and not when a news portal is.

    By not saying anything at all about those opt-out provisions, we don’t know what the Court feels about those. It may seem obvious to you, and I may even agree with you. But, it doesn’t hurt to see it stated in writing from the Court.

  10. It was only a summary suit so my best guess is that G didn’t even have the opportunity to come up with things like noindex/cache etc. Those things will come up in November when the actual suit takes place. That case will probably take some more time…

    Another addition: This case is most likely only meant as a prelude to a shared business model between Google and the associated presses. The Dutch Associated Press (NDP) already announced that they will join their Belgian colleges when that happens.

  11. It will be interesting to follow.

    I think that you are right that this is an attempt to force the search engine to explore a “business model” with the Belgian news sources to include content from them.

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