A court in Brussels has ordered on September 5th that Google remove all news stories from the French and German-language Belgian publishers*. “Removing” means: both from Google News, as well as from the Google cache of the regular search Google.be/.com search engine. The verdict is confusing because it mixes up aspects of the regular search engine and the news.google.be portal, both in its analysis and its ruling. And it is a dangerous precedent, because it assumes search engines should explicitly ask permission to
to index and cache content.
The plaintiff’s copy of the ruling is available (pdf) in French and in English translation (from p. 19 on). Here’s the conclusion (p20):
The overview of the facts (p21), describes the Google News service:
According to the report (p21-22) of the expert (Luc Golvers, who is university lecturer and president of the Belgian Association for Computer security), Google News is not a search engine, but an information portal, implying that Google has created a derivative work without respecting the original copyright holders.
But now follows a strange twist in the motivation: a description of the Google cache. There are no “in cache” links in the Google news sites, so without further clarification, arguments are drawn that refer to the way all regular search engines operate.
… and in its wrap-up, Google News is being held responsible for the effects of the Google cache, more in particular the fact that a withdrawn article does not disappear (immediately) from the Google cache (bullets 1 and 4).
These points are combined with arguments that traditionally have been used against news aggregators and deeplinking (so far unsuccessfully, see the Kranten.com case as discussed in a previous posting): the news aggregator disintermediates news publishers by making people skip the home page, reducing the stickiness of the news site, etc…
There’s a lot more to be said about:
- the apparent arrogance of Google (not even notifying news publishers officially of their inclusion in what is indeed a news portal) on the one hand… **
- and on the other hand: the (pretended) ignorance of news publishers, and their inability to monetize the traffic generated by Google News***.
But let’s now stick to the legal case:
The mixup of the working of a news aggregator and of general search search engines is regrettable because it fails to deliver a clear verdict on the legitimacy of news aggregators.
I doubt the same wording of the verdict will be held up in appeal. If that were the case however, it would be a dangerous precedent. According to the verdict’s logic, a search engine should ask permission explicitly from any publisher or website before
indexing and caching its content, ignoring the well-established practice on the web of robots.txt and robot (NOCACHE, NOARCHIVE) metatags. That could spark a flurry of opportunistic court cases against Google and other search engines, seeking compensation for copyright infringement, and make the search engines to actually establish a procedure for publishers to have their content indexedcached.
Please note that there’s nothing specifically Belgian in the argumentation, since all copyright and intellectual property legislation is based on the same principles in the European Union and in the US.
* As represented by Copiepresse, the company that had filed a complaint. The Dutch-language Belgian Press, as represented by REPROCOPY had asked and obtained removal of their articles from Google news (not from the general index) but had not taken any judicial steps.
***For a friend of mine, an independent journalist on EU affairs, Google News is his main source of incoming traffic ànd income by both subscriptions and article purchases
[tags]google, syndication, aggregation, Belgium, googlenews, publishing, media, copyright, fairuse, news.google.be[/tags]