Belgian Copyright Ruling Against Google News

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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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