Google Loses In Belgium Newspaper Case

Danny Sullivan on
  • Categories: Channel: Industry, Google: Legal, Legal: Copyright
  • A Belgium court has found that Google did violate copyright when
    including material from several Belgian newspapers in its search index. Google
    may have to pay a fine, but the ruling is far more positive for
    the company. Google can continue to index content without explicit permission.
    NOTE: The story is developing, so I will be adding postscripts as new
    information flows in. Google Blog announcement also now up here.


    Google loses copyright case launched by Belgian newspapers
    from the
    Associated Press and

    Google Breached Newspapers’ Copyright, Court Rules
    from Reuters (and see here) explains
    that Google will have to pay a retroactively daily fine of €25,000 (about
    $32,000) for the it failed to remove content after Belgian newspaper
    group
    Copiepresse asked for removal of
    its members’ material. (Note: Techmeme has a further roundup of coverage here)

    Whether the group’s real goal — to force Google to pay the newspapers for
    future inclusion — will happen remains uncertain. The newspapers could have
    kept themselves out of Google without fighting a court case (my past article over at Search Engine Watch, Google’s Belgium Fight: Show Me The Money, Not The Opt-Out, Say Publishers, explains this in more depth). Now that the first
    round is over, they’re still out — and Google is not prevented from getting
    permission before including other content.

    Copiepresse started
    the legal action last March, arguing that Google’s use of the widely accepted and
    respected
    robots.txt
    or
    meta robots standards
    as a way of opting-out of indexing was somehow trying to impose copyright rules of Google’s
    own making on content owners. This is regardless of the fact that robots.txt
    existed before Google did.

    A summons was sent to Google in the United States. The company received it
    but failed to act upon it. That resulted in a court hearing in Belgium on
    September 5th, without Google being represented in court.

    A ruling ten days later, on September 15, required that Google remove the
    sites and post a notice on its web site. Google removed the sites but initially
    stalled on posting the ruling until an appeal on the damages could be heard.
    When that

    went against
    them, Google finally complied on September 25, adding it to the
    Google Belgium,
    Google Images Belgium
    and Google News Belgium
    home pages.

    In November, Google’s case was reheard. At the same time, Google

    reached
    a content agreement with Sofam
    and Scam, two Belgian groups that cover
    photographic and audio/visual content. Those groups joined the
    Copiepresse case in October. The
    agreement got them to drop out of the case. Google didn’t specify what the
    agreement covered, other than to say:

    "It’s a way for us to use their content in new ways beyond what copyright
    law currently allows us without the permission of the authors," said Powell
    said.

    My between-the-lines analysis of the situation I
    wrote at the
    time explained:

    The Sofam deal might help solve some of Google’s legal issues in Belgium.
    The group represents the rights of nearly 4,000 photographers in Belgium,
    Google said. Google did NOT say how this might translate into usage at Google
    News. However, potentially this means Google can have photos in Google News
    even from publication that it had to
    remove from
    Google Belgium by court order. The Sofam deal might provide legal cover there.
    Of course, if those publications are the only source of certain photos — and
    they block use through systems like robots.txt — that would still keep the
    content out of Google. I’m also following up more on this particular issue.

    The deals do not restore access for Google to list textual news stories it
    finds. That means it has to remain hopeful that the legal case will go its
    way, if it wants to prevent some type of negotiations with the publishers that
    have opted-out.

    If the case goes against Google, it doesn’t appear to be facing in major
    damages. If these were to be levied, that should have happened when it lost
    the first time. Instead, the publishers will remain out of Google, making
    Google News Belgium less useful than it would be. However, they also deny
    themselves traffic from Google. Possibly Google might negotiate a
    payment-based system to include them. Equally possible, it might also decide
    to hold its ground and focus attention on other countries, to see if it can
    wait the publishers out.

    If the case goes for Google, then it regain content that will help enhance
    Google News Belgium, unless those publisher decide to specifically block
    spidering, which Google would almost certainly honor.

    Copiepresse put Microsoft on notice back in October that it might sue,
    resulting in Microsoft
    removing
    content. Then it went after Yahoo in January. Margaret Boribon from Copiepresse, who I did a
    long-interview with
    back in
    September,

    said
    :

    "We’ll go to court if they don’t do anything," said
    Boribon. "Experience proves that these sites don’t remove the links easily."

    This is simply not true. The content could have been removed through the use
    of robots.txt files or meta robots files such as explained on the Google Blog
    recently.
    But keeping content out wasn’t the goal.

    Experience over the past decade of search engines proves that
    existing methods work great for getting content removed. This case was never
    about getting content out. It was about trying to blackmail Google into
    including content. Now the newspapers may get a large fine coming their way, but
    whether Google will feel it still wants to cut a deal with them remains unseen.
    Certainly it has no need to in order to keep indexing content in general.

    Postscript:

    I’ve just talked with Google’s public relations department in Europe. Some
    more points on the story.

    First, they are appealing the ruling. Didn’t they already appeal it? No, it
    was a rehearing of the original case, granted because Google wasn’t present to
    defend itself the first time. Now that the case has been reheard, an actual
    appeal to a higher court can happen.

    How much is the fine? Originally, I thought this might be up to $4.4 million,
    using the 139 days cited in the Reuters article above. But that time period
    seems to stretch from when the initial ruling happened until now. Google
    suspects they are only liable from the time period from when the initial ruling
    happened, September 15, and from when content was removed — the next day.

    Google also says the fine isn’t automatic. Copiepresse must go back to the
    court and say they want to claim compensation of a set amount, then be granted
    approval.

    How does the ruling potentially change the way Google indexes content in
    Belgium. Not much. Google says that unlike cases in the US or the UK, the ruling
    will be seen legally as specific to this particular situation rather than
    indexing in general.

    In particular, Google says that the other groups that joined up with
    Copiepresse after the initial ruling have eight days to make removal requests if
    they are still in Google. Google then has to act on those requests, sent via
    email, within 24 hours. That’s the extent of the ruling. For all other sites,
    Google does not see the ruling as requiring a change to how it operates.

    Postscript 2:

    I’ve now talked with Yoram Elkaim, legal counsel for Google who oversees
    Google News legal issues in Europe. First I asked more about the ruling is not
    seen by Google to set a precedent:

    "Because of the legal system in most European countries, there is no rule of
    precedence. That means the court here was really asked to apply the law on the
    specific situation and on the plaintiffs in this situation."

    What about the time frames and removal by email?

    "We have eight days [from receiving notification of the ruling, which has yet
    to be served on Google in California] to give them [the plaintiffs] an email
    address that they can use to notify them of infringing content, then we have 24
    hours to take their content out of the index."

    So this really only impacts the people who were part of this case?

    "We have no plans to modify the product [how Google crawls and list sites]
    itself. Since this case has been fairly high profile, we would assume any
    publishers [in Belgium] that have problems being in the index would have come to
    us. And if they do it today, we’d remove them as we’ve always done."

    How much might the fine potentially be? Copiepresse

    says
    Google might need to pay for nearly 140 days worth of violations.

    "Right now, there’s a disagreement on whether Google did comply with the
    September ruling. In our view, we did within a few days," Elkaim said. We
    removed all those web sites represented by Copiepress from Google News and the
    Google search engine. In our view, this aspect is unchanged and doesn’t call for
    additional measures at this point."

    Explaining further, he said:

    "The Copiepresse organization is arguing that Google is not complying with
    the ruling and that the daily fines are still going."

    How? Because some of the content is showing up in Google sites outside of
    Google Belgium itself.

    "We interpreted the Belgian ruling as applying to the Belgian web sites.
    Copiepresse thinks we were too narrow, on one hand. But on the other hand, they
    criticized from taking us off the sites entirely, rather than taking off the
    cache feature [from listings]."

    Will Google seek to cut a deal to include these web sites in Google News?

    "We’re very much open to finding ways to resolve this issue out of court and
    hopefully doing that without compromising our principles," Elkaim said. "That’s
    what we were able to achieve with other groups."

    "To the extend that they would like us to pay to just index their sites as
    we’ve done so far, I don’t think that will happen. But if we can find other ways
    to cooperate, such as more substantial use of their  content through maybe
    a licensing agreement, we wouldn’t rule that out. But just paying for the
    privilege of showing snippets and links to their web sites, we wouldn’t do
    that."

    Postscript: 3Copiepresse emailed the following comments:

    As you can imagine, we are off course very pleased with the decision which
    confirms almost completely the first one (5 September 2006), except on the
    amount of fines and the database legislation.

    For your information, the first decision is already posted in French and
    English on our website www.copiepresse.be.
    Tuesday’s decision is also posted there but only in French at the moment. As
    soon as we have it translated (which has to be done by a judicial translator),
    we’ll post it on the site in English too.

    I’ve read your article. Some elements seem to need some corrections :

    Facts:

    Tuesday’s decision:

    Contrary to what Google says, it is not allowed to continue to index
    content without prior permission: the first decision has been confirmed and
    Google’s acts are considered illegal regarding the publishers content. The
    obligation for copyright owners to notify Google and ask it to remove their
    content only applies to the authors’ societies (SAJ, Assucopie) and not to
    Copiepresse. Our members’ rights have been fully recognized by the judge:
    their names and websites are sufficiently well-known.

    The fines have been reduced to 25.000 euros/day instead of 1.000.000
    euros/day: but this is absolutely not crucial. What counts is that the judge
    confirmed that reuse of content by a search engine or portal is contrary to
    the publishers’ rights following the European copyright legislation.

    Regarding Google not complying with the first decision: since google.com
    and google.fr are also accessible from Belgium, we do not see why Google
    should think that the decision only applies to google.be. Since they
    disindexed our members from all their search engines, we don’t understand why
    they didn’t remove the cached pages from sites "outside" Belgium.

    Copiepresse is open to discussions in order to find an agreement satisfying
    all parties, taking into account that content are valuable. Without
    remuneration, content will disappear: who can afford to work for free?


    About The Author

    Danny Sullivan
    Danny Sullivan was a journalist and analyst who covered the digital and search marketing space from 1996 through 2017. He was also a cofounder of Third Door Media, which publishes Search Engine Land, Marketing Land, MarTech Today and produces the SMX: Search Marketing Expo and MarTech events. He retired from journalism and Third Door Media in June 2017. You can learn more about him on his personal site & blog He can also be found on Facebook and Twitter.