NOTE: See our follow-up story from today: Google Avoids Link Tax But Ambiguous New “Ancillary Copyright” Law Sets Up Legal Battle To Come

Der Spiegel explains more about the change:

“Google will still be permitted to use “snippets” of content from publisher’s web sites in its search results….

“What the new draft does not stipulate, however, is the precise definition of the length permitted.”

The draft bill introducing an ancillary copyright for press publishers in Germany (Leistungsschutzrecht or LSR) goes to a final vote at 1o am Germany time on Friday. Below is my background about the hearings that happened this week, which in part lead to the snippets change.

From This Week’s Technical Hearing

Despite all the procedural and constitutional objections to the Leistungsschutz bill, there are also a couple of technical and political ones. Critics (and there are plenty of them) raise concerns that the collateral damage by this change in copyright will hurt search engines, innovation in general, and especially smaller press publishers. They point to ambiguous language in the bill that will cause legal uncertainty and lawsuits that will take years to be settled.

The German government and supporters of the bill have done little to address these objections. On Saturday, I published an advance copy of the answers by the government in response to a letter of inquiry by the opposition Left Party. There is a continuing pattern in the government’s response referring open questions to be settled by courts or simply by ignoring the question.

One of the last opportunities to discuss the mechanisms of this ancillary right within the parliament lasted for 90 minutes Wednesday at an expert hearing at the subcommittee for New Media (Unterausschuss Neue Medien, UANM) at the German Parliament.

Public invitations for this hearing were sent out only a couple of days ago, after two weeks of behind-the-curtain negotiation between the governing factions in parliament (Christian Democrats (CDU/CSU) and Liberal Democrats (FDP)) and the opposition factions (Social Democrats, Left Party and Green Party).

CDU/CSU and FDP had previously refused to schedule another hearing next to the judiciary committee hearing in January, saying that all questions could also be addressed in this expert hearing. As it turned out, there were a couple of technical questions that could not be addressed, due to the fact that none of the invited experts in the judiciary committee hearing were experts in the field of technology. How could anyone have known that there are at least two kinds of experts out there!

Invited experts were

• Dr. Wieland Holfelder, engineer at Google (there was a consensus agreement by the committee members  that he could pass non-technical questions to legal counsel Arnd Heller from Google, who was sitting behind him)
• Dr. Thomas Höppner, representative from the press publishers’ association BDZV
• Prof. Dirk Lewandowski, University of Applied Sciences, Hamburg
• Michael Steidl, International Press Telecommunications Council (IPTC), London

Two experts were invited by the majority factions (Höppner and Steidl); two experts were invited by the opposition (Holfelder and Lewandowski). The procedure was following the usual procedures: there were three rounds of questions for members of parliament, two questions from each faction to one expert or one question to two experts. There was no opportunity for introductory statements by the experts and no strictly enforced time limit on answers.

So, in order for an expert to be allowed to speak, he has to be given a question from a member of parliament. An expert is not allowed to ask questions or offer refutations to other experts directly. This results in a strategy that each side is going to give softball questions to their own experts and potentially compromising questions to the experts from the other side. It has to be assumed at many hearings that questions were exchanged before the meeting and that there is some level of expectation on what the answer might be. This is exceptionally true for partisan experts whose employers directly benefit from or suffer by the outcome of this legislative process.

Some of the softball questions provided the experts the opportunity to explain how robots.txt works (Holfelder) or explain the shortcomings of robots.txt (Steidl and Höppner).

Holfelder introduced himself as engineer who implemented his own Web crawler 14 years ago. He distributed printouts of robots.txt examples and the resulting snippets in the search engine results pages. He explained additional meta-tags that Google uses to add or remove content from the Google (or any other of the leading search engines). To some extent, his presentation felt both verbose and strangely elementary. In an ideal world, none of this information would have been new to a subcommittee that specifically focuses on such topics.

Petra Sitte, (Left Party) had asked Holfelder to comment on ACAP, a protocol that was proposed by a few publishers and has failed to get any meaningful level of acceptance by the market. Holfelder provided a few examples in which implementing ACAP will be prone to spammers, as it mandates the way in which provided descriptions have to be shown.

Konstantin von Notz (Green Party) asked Holfelder whether it was possible for a search engine provider to detect whether specific content on a website is covered by this LSR or not. This is – in my opinion – is one of the most important questions of this bill because it outlines the potential for huge collateral damage or legal uncertainty over the coming years.

The ancillary copyright is awarded to a press publisher (a press publisher is defined as anyone who does what the press usually does) for his press product (the product of what a press publisher usually does). It exists next to the copyright awarded to the author, who can license his/her content to anyone else. It means that it is not the text itself that defines whether content is covered by the LSR.

Here is an example: a journalist maintains his personal website in order to advertise for his services as a freelancer. He has a selection of half a dozen of his articles on his website that help inform potential customers of his journalistic skills. These articles are, of course, protected by copyright. They will not, however, be covered by the ancillary copyright because he is not a press publisher. The very same texts on a magazine’s website will be covered by the LSR. How can a search engine determine if text on a website is subject to both copyright *and* LSR?

Holfelder replied that Google has a couple of heuristics to determine whether a certain page is provided by a press publisher. However, this law has no provisions for “honest mistakes.” If Google fails to detect LSR content and does not receive prior permission to index such content, Google faces legal consequences. There is no such thing as a “warning shot” or an obligation by the press publisher to proactively inform a search engine whether copy on a certain page is LSR-covered. This is the legal equivalent of a minefield.

Holfelder stated that a search engine would, in this scenario, tend toward overblocking in order to avoid a lawsuit for violating the LSR.

Höppner, the press publishers’ expert, spent his time mocking a comparison about this bill that involves taxis and restaurants. He then stated how services such as Google News substitute visiting the original pages, with some rambling about a Google service called “Google Knowledge.” It was hard to tell whether he meant the failed Google Know project or the Google Knowledge Graph in the standard Google search.

His main argument on robots.txt was a passive-aggressive one. Publishers do not like robots.txt per se; they merely use it to fight for the last crumbs that search behemoths like Google have left them. In other words, if a press publisher is providing meta description text or Twitter cards, this should not be seen as some kind of agreement to actually use this text in order to build snippets in a search engine. I severely doubt that this position would hold in court or among the motivation of press publishers.

Prof Lewandowski’s contribution to the hearing was an interesting one as he is the first expert in a long time who does not seem to have an agenda with respect to the LSR. His views were balanced, nuanced ones, highlighting both the high level of acceptance of robots.txt and some of its shortcomings. He pointed out that at least at Google News, the limited amount of sources and the opt-in-mechanism (yes, it’s more complicated than that) of Google News would permit running such a service in an LSR world.

Steidl used his time to explain IPTC’s contribution to the world of standards and mentioning the RightsML project which is in active development. He criticised robots.txt for being without a governing organisation and for failing to express rights on a sub-article level.

Both Google and the press publishers were not very eager to present actual numbers in Google News usage or how visitors are directed to third-party websites.

In round two, Google’s legal counsel Haller was asked how Google will react to this bill, if enacted. He replied that Google does not know the final version of this bill, and that Google has not decided yet on how to implement it. He pointed out that his company would have to not only deal with publishers from Germany, but from the entire European economic area, which could exercise their own LSR rights against Google.

Editor’s Note From Danny Sullivan: Thanks again to Mathias for contributing this report and his views. Be sure to also see our previous story, German Parliament Hears Experts On Proposed Law To Limit Search Engines From Using News Content.

The hearing didn’t result in a vote. It was the next step in a process that may lead to Leistungsschutzrecht becoming law or not. Below, some background on what happened at the hearing, along with some analysis from my perspective about the law.

Before I go further, an important note. I am not a lawyer. English is not my native tongue, and I am not a trained journalist. Please do not expect legal expertise, journalistic style or proper English. I do not speak on behalf of anyone else. This is my personal opinion. But I have I’ve been tracking “Leistungsschutzrecht für Presseverleger” since 2009, as part of my work for Wikimedia Deutschland, as we’ve tried to figure what impact it might have on us or others.

Background About Leistungsschutzrecht

Under the current copyright law in Germany, it is perfectly legal to operate a for-profit search engine that contains search results from German news publishers. It is legal to allow users to enter search terms and to display search results that contain a link to pages matching the search terms. It is also legal to add a snippet to this link and present a small piece of information that might help the user understand if this is a meaningful search result you might want to click on.

The draft Leistungsschutzrecht bill (known as “LSR”) was formally proposed by the German government coalition in August of 2012 and passed to the German parliament for action. That action will involve several readings and committee reviews, of which yesterday’s hearing was only one.

If this bill is enacted as-is, search engines would no longer be allowed to display snippets unless they had received permission first. This is very crucial aspect of this Leistungsschutzrecht. It is not meant as an opt-out tool that allows you to operate a search engine unless the publisher objects and has his web sites removed. Quite the opposite, it is up to the search engine operator to ask for permission first.

LSR would grant news publishers an exclusive right to “make public” news content for one year, though what exactly “news content” would be is unclear. Part of the proposed law defines this as essentially doing what the press “usually does,” explicitly mentioning informing, offering opinions and entertaining.

After the year exclusivity period had passed, the right would be transferrable. There are provisions to ensure authors or other right holders are not disadvantaged. Other provisions would extend rules specifically aimed at requiring search engines and ”commercial providers of services who process content respectively” to seek permission for use.

The bill does not have requirements on payments. It is quite possible that in an LSR world, a news publisher grants permission to a search engine for free use. It is also possible that the press publisher pays the search engine in order to get included into a web site. In any case, the default switch is set to, and I am going to use a German term here you might remember from the TV show Hogan’s Heroes: VERBOTEN.

How Would It Work? Unclear

There are many unanswered questions and uncertainties about how LSR would work. For example, how does a search engine how whether a something is a news story? The answer is simple: it doesn’t.

A news story published by a journalist on his personal web site and meant as an example of his skills will not be covered by the LSR, whereas the same exact text on the web site of a publishing house will be covered by the LSR.

It is a matter of open debate whether blogs will qualify as press products. A safe approach for a search engine operator will be to assume that all content is press content until evidence to the contrary surfaces.

Next question: Why don’t publishers simply use robots.txt to exclude Google from listing them? The answer is, again, simply: A large share of revenue comes from showing ads to visitors who come in via Google and Google News. There is no economic point in shutting down one of your largest sources of income. Publishers want to have Google continue sending them customers and at the same time get paid for it.

Who doesn’t want to have the cake and eat it, too? Some publishers have tried to present robots.txt as a binary measure that is incapable of preventing the indexing of only parts of a web site or the selective exclusion of services like Google News or the ability to disable snippets. Their objections have been disproven by (LSR opponent and journalist) Stefan Niggemeier.

Yesterday’s Expert Hearing

Yesterday’s hearing was, as best we know, the only expert hearing that will be held as the proposed law is considered. It lasted for three hours. It allowed members of the Bundestag to ask questions to nine experts who were picked by the five parties in parliament (larger parties got to allocate more expert slots). These experts were allowed to submit written statements before the hearing (you can find them in German here).

Parts of the hearing were easily predictable. Members of the political opposition (which is against the proposed law) had picked scholars to speak against it. The governing parties had picked experts supporting the law. Questions from one party to their own experts were meant to create the opportunity for these experts to elaborate on their arguments in favor or against the Leistungsschutzrecht.

While it was an expert hearing, it wasn’t focused on technological expertise. Instead, it was more a scholarly or philosophical examination, of how such a law might fit into the current framework of constitutional law, European Union law the current dogmatic style of copyright.

Whenever a technical question was raised, the answers were vague, evading or simply hilarious.

A representative from the publishers’ associations in favor of the law kept on repeating a demand for technical language with a much more complex vocabulary to express conditions such as temporal, topical or size restrictions, payment requirements and other conditions.

So far, he has been unable to present a viable way how this could be implemented and he has failed to explain the obvious: the language he proposed would only constitute an invitation to negotiate on the terms. It would not substitute the negotiations itself, bringing us to the argument of a huge and crippling bureaucratic nightmare or opt-in-rights negotiations.

All experts in this hearing agreed that this law will create an era of legal uncertainty, and it will require a series of lawsuits to create enough case law to see who will actually be within the sights of the LSR. The time span mentioned was five years or more. Until then, any professional legal advisor would be required to warn his clients against innovating or investing in search engine projects in Germany because of such uncertainty.

Till Kreutzer, a legal expert and vocal LSR opponent who was among the nine invited experts was correct to point that out. He’s been working on this topic since it first emerged as a proposal by the publishers’ association in 2009. He and several other experts agreed during the hearing that the current LSR design will most definitely favor large corporations over smaller startups and smaller publishing houses and that the economic effects of this law will strengthen the position of both Google and companies like the Axel Springer publishing house.

Beyond Google: Twitter & Facebook?

At one point, parliament member Burkhard Lischka, of the opposition Social Democrats party, asked expert Christoph Keese of the Axel Springer publishing house if the proposed law would apply to news content that is shared on Twitter and Facebook.

Keese ducked the question. That’s probably because he, like most, doesn’t know. No one will for certain until a court case happens.

The Law Has No Clothes?

A key point during the hearing, to me, was when the parliament member and committee chair Siegfried Kauder, of the Christian Democrats party that’s part of the ruling government coalition, stated that after hearing from the experts, it seemed that the law was unlikely to actually produce new income for news publishers. Given this, he asked, why did it make sense to still pursue it?

Despite Kauder’s party being in favor of the law, he’s opposed to it but unable to actually stop it. His statement resulted in some laughter, perhaps because it was an “emperor has no clothes on” moment. So many seem to understand the absurdities in the proposed law that it’s almost humorous.

Next Steps

What happens next? There might be political pressure to have another expert hearing, this time with experts from the technical and commercial world. However, the chances are quite limited, and the governing coalition has shown little interest in dropping this endeavor.

In particular, there’s a general election of the Bundestag in September. If this law is going to have a good chance to pass, it has to reach the President’s desk well ahead of that date. The coalition government might try to speed up getting recommendations in favor of introducing such a Leistungsschutzrecht in order to have the second and final required readings by February. The very last possible date for a second and final reading is the last week of June.

In the meantime, all it took was a skilled programmer to come up with a tiny Chrome extension that will detect URIs in plain text and create snippets on the fly, thereby completely circumventing the LSR. You can test the proof of concept here have a look at the screenshot that compares a demo page without the plugin or with the plugin enabled.

It is almost certain that if this LSR becomes law, a huge amount of legal expertise and programming skills will be wasted to present workarounds to the LSR to restore what had been possible until then or come up with technical or legal countermeasures to stop these workarounds. One might think that there are enough actual things to do.

Editor’s Note From Danny Sullivan: My thanks to Mathias for contributing this report and his views. I couldn’t find any decent English-language coverage of yesterday’s hearing, so I’m glad he agreed to provide this contributed piece — and far better than I would have done trying to write something up in what I remember of my college German.

What’s most amazing about all this is that those pushing for this law inside and outside the government seem to have entirely forgotten that Europe has been here before, in the form of ACAP. That was a grand proposal — largely driven by news publishers in Europe — to figure out a way to curb what they saw as unfair use of their news content by search engines through a convoluted rights mechanism.

Despite the large amounts of time and money put into developing ACAP, it went nowhere, for various reasons. Chief among them was that it was such a complex system that tried to replace a fairly simple model that’s been used for almost two decades now — the robots.txt system. Robots.txt lets you be in a search engine if you want. If you don’t like it, don’t feel you get value from it, you can opt-out. It’s easy and effective.

We’ll be looking more at Leistungsschutzrecht in the near future, in particular trying to get some more details of how those in favor of it think it could actually work and would potentially be better than the system we have now.

Given today’s hearing, and what I’ve read of it over the past few months, I’ll be surprised if there’s anything more compelling than what ACAP was — and thus surprised even more so if it really goes forward as some unclear law with unclear technical standards.

For more on ACAP, see the first two articles below, with some related reading below that:

• ACAP Launches, Robots.txt 2.0 For Blocking Search Engines?
• Head-To-Head: ACAP Versus Robots.txt For Controlling Search Engines
•  The New York Times Paywall Meters All Google Visits, Not Just Search Visits
• After Meeting With Eric Schmidt, France Stands By Threat To Write Law Forcing Google To Pay To Link To News Sites
• Google Wins Street View Reprieve In Germany But Confronts New Pro-Newspaper Copyright Restrictions