By Dugie Standeford for Intellectual Property Watch
Google is turning the intellectual property world on its head as it battles challenges to its search, book publishing and online video activities. The outcome of the debate over whether any are compatible with copyright law is by no means certain, legal experts said this week.
Yet Google doesn’t think it is shaking up copyright law, said Rachel Whetstone, director of European corporate communications and public affairs. The company believes copyright is “incredibly important” and that authors deserve to be rewarded for their efforts – and all its products are designed with that in mind. Most people do not create content to have it “languish in obscurity,” Whetstone said. Google helps others find it and lets creators choose how they are remunerated for it, she added.
A key challenge to Google’s search function arose last year when Belgian rights management society Copiepresse, which represents German- and French-language journals, alleged the search engine breached Belgian copyright law by linking to and caching newspaper articles. When Google failed to make an appearance in the case, the Brussels Court of First Instance issued a default judgment last September. Google was ordered to remove from Google News and all caches any articles from newspapers represented by Copiepresse or pay €1 million per each day of delay, and to post the court order on its Belgian websites. Google removed Copiepresse content from its websites.
Google’s attempt to set the ruling aside failed, and last month, the court upheld its earlier judgment. Google said it would appeal.
Even more controversy is swirling around the company’s proposed project to scan books from the world’s major libraries. In 2005, the Association of American Publishers (AAP) and others sought a court ruling on whether the plan breaches copyright.
On 6 March, Microsoft Associate General Counsel Thomas Rubin, speaking at an AAP conference, accused Google of treating rights holders arrogantly. It “persuaded several libraries to give it unfettered access to their collections, both copyrighted and public domain works. It also entered into agreements with several publishers to acquire rights to certain of their copyrighted books,” he said.
Despite the deals, in late 2004 Google “basically turned it back on its partners,” Rubin charged. It “concocted” a novel fair use theory that gave it a unilateral right to copy entire copyrighted books not covered by the agreements without first obtaining the copyright owner’s permission, he said.
Microsoft, on the other hand, will avoid “any business model that is based on systematic infringement of copyrights,” Rubin said. Only materials out of copyright or with express permission from publishers will be scanned for its “Live Search Books” project, he said.
Google assures copyright owners it will safeguard their rights, Rubin said. But, he added, the company’s “track record of protecting copyrights in other parts of its business is weak at best” – pointing to complaints about Google’s “cavalier approach” to posting copyrighted material on video upload site YouTube, which it purchased last year.
Google Chief Executive Eric Schmidt dismissed the attack, saying it was part of negotiations between Google and media content companies over YouTube content. He noted a “genuine disagreement’ between Google and media companies such as Viacom, CBS and NBC Universal over the value of copyrighted video material, the Financial Times reported.
Nevertheless, on 13 March Viacom sued Google and YouTube in New York for “massive intentional copyright infringement.” The lawsuit seeks more than $1 billion in damages.
YouTube’s business model, “which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws,” Viacom said. In fact, the company’s strategy has been to “avoid taking proactive steps to curtail the infringement on its site” while shifting the burden of monitoring YouTube onto the victims of its infringement, Viacom said. The litigation follows “a great deal of unproductive negotiations and remedial efforts” by Viacom and other copyright holders, the media giant said.
“We are confident that YouTube has respected the legal rights of copyright holders and believe the courts will agree,” a YouTube spokesman said. The service is “great for users and offers real opportunities to rights holders,” such as interacting with users and tapping into the online advertising market, he said. YouTube won’t let Viacom’s lawsuit distract it from its continuing growth and strong performance, he added.
Meanwhile, Viacom got a taste of its own medicine on 22 March when the Electronic Frontier Foundation accused it of stifling the free speech rights of MoveOn.org Civic Action and Brave New Films by making a “baseless copyright complaint” over their posting on YouTube of a satirical parody containing clips from Viacom-owned Comedy Central.
Unanswered Questions
The Copiepresse ruling left many questions hanging, said Pinsent Mason technology lawyer Struan Robertson. One of Copiepresse’s claims was that Google’s indexing and caching of newspaper articles breached European database rules. However, the court did not consider that argument because, unlike Belgian copyright law, the database measures bar a trade group from representing interested parties, meaning each publisher would have had to sue individually.
The claim was “potentially strong” because courts have characterised websites as databases, Robertson said. Anyone using systematic snippets from a database may be liable for infringement. If Copiepresse’s case is overturned on copyright law, he said, publishers could try again under database law.
Google likely will not face more lawsuits because content owners can opt out of having their material searched and indexed, a right the firm has made clear, Robertson said. Moreover, he noted, it is difficult to see how having its members’ websites dropped from Google’s search function helps Copiepresse. Mass removals of content might affect the quality of Google News, but it is not likely to harm the company itself because the service is not a money-making proposition, he said.
The Brussels court found Google’s news service infringing because it indexed and displayed snippets of articles and cached entire stories, said IP lawyer Laurence Kaye. Despite the fact that users can link to the newspapers themselves, many do not go beyond the excerpts on Google News, creating in effect a “substitute service,” he said. But the court never reached the question of whether the daily launch of “bots” to search for content also raises copyright problems, Kaye said.
Google’s book search program is “trying to rewrite the basic rules of copyright” by arguing that its “opt-out” approach – “Tell us if your work’s in copyright and we’ll stop” – provides a defense, Kaye said. Failing that, it pleads fair use. But faced with courts favouring a traditional copyright approach, Google is likely to lose, Kaye said.
Kaye is part of an effort to create a new rights management scheme which could end the conflict between search engines and publishers. The Automated Content Access Protocol – launched by the World Association of Newspapers, European Publishers Council and International Publishers Association – lets copyright owners provide permissions information about access to and use of their online content that allows search engines to systematically comply with relevant licences or policies. The project’s technical framework is being pilot-tested.
In the US, Google appears to be relying heavily on Kelly v. Ariba Soft Corp., a 2003 9th Circuit Court of Appeals decision, to shore up its print library project, Robertson said. The case, which held that a search engine operator’s use of a content owner’s “thumbnail” images amounted to fair use, took a pragmatic view of what search functions do, he said. However, it remains to be seen if a court will apply the same thinking to book copying.
Search engines rely on an implied license to trawl through content and fair use in the US, said Robertson, but they cannot count on either theory in Europe. And while the EU e-commerce and copyright directives recognise that intermediaries such as Internet services providers are generally not liable for infringements on their networks, the activities of search engines arguably do not fall neatly within either, he said.
Viacom Case Implications
The US Supreme Court traditionally deferred to Congress in the area of copyright policy-making, Stanford University law professor Lawrence Lessig wrote this week. That changed in June 2005 when, he said, the court “expanded the [US] Copyright Act in the Grokster case to cover a form of liability it had never before recognized in the context of copyright – the wrong of providing technology that induces copyright infringement.” The decision sent a clear message to lawyers everywhere, Lessig said: “You get two bites at the copyright policy-making apple, one in Congress and one in the courts.”
“Search engines rely on an implied license to trawl through content and fair use in the US, but they cannot count on either theory in Europe. And while the EU e-commerce and copyright directives recognise that intermediaries such as Internet services providers are generally not liable for infringements on their networks, the activities of search engines arguably do not fall neatly within either.” Struan Robertson, technology lawyerViacom “has now accepted this invitation from the Supreme Court” to argue that the US Digital Millennium Copyright Act’s (DMCA’s) provision of “safe harbour” from infringement liability for Internet services providers no longer makes sense, he said. Instead, it contends YouTube has the duty to take reasonable precautions to “deter the rampant infringement on its site,” a responsibility the DMCA does not impose on the video site unless it fails to remove infringing material as soon as it is notified by the copyright owner.
Forcing YouTube to shoulder the burden of policing its system for potential infringements sounds reasonable at first but could narrow the safe harbour defense to the point where the “next Googles” are “strangled at birth” by established industries, Duke University law professor James Boyle said recently in the Financial Times. The safe harbour itself is the result of legislative compromise with content companies, Google supporters would point out, he said.
In France, by contrast, the litigation could well be seen as a way for Viacom to secure the sort of commercial arrangement French video-sharing platform DailyMotion already has, said Meryem Marzouki, of digital rights group Imaginons un reseau Internet solidaire. The arrangement allows royalty collecting societies and music companies to share advertising revenues generated by the videos.
Music Industry Focus on Search Engines
The liability of search companies for infringing third-party content is also at issue in a lawsuit filed against Yahoo China earlier this month by recording industry group International Federation for the Phonographic Industry (IFPI), EMI, Sony BMG Music Entertainment, Warner Music and Universal Music. According to reports, the lawsuit seeks around $710,000 for alleged music piracy.
The complaint centres on Yahoo China’s music search service, where many downloads are allegedly pirated, the Financial Times reported. Yahoo China owner Alibaba.com claims, however, that clear precedent protects search companies from being held responsible for content held on others’ websites. Last year, the labels lost an infringement case against another Chinese search engine, Baidu.com.
Dugie Standeford may be reached at info@ip-watch.ch.