Google Loses A Skirmish In A Belgian Court
Belgian Google posts court order --the usually clean Google page cluttered with copy.
By Michael Stillman
An interesting skirmish took place in a Belgian court a few weeks ago which may have implications for the battle between search giant Google and publishers unhappy with Google Book Search. Google Book Search is the search engine's service that is copying texts from millions of old books and making them available through the internet. While there is no issue over books for which copyrights have expired, some of what Google has copied is still within copyright. Google only makes "snippets" of books under copyright available, a sentence or two around the search terms, versus the entire text for out-of-copyright books. They have also agreed to completely remove books upon request by the publisher. However, this has not been sufficient for some publishers who have focused not on the snippets shown (logically minimal "fair use" copying like a book review) but on the fact that Google has copied the entire protected text. Additionally, they feel that Google should be asking permission, rather than making it incumbent on the publisher to request removal.
The Belgian case dealt with a complaint by Copiepresse, a firm that represents the owners of copyrighted press articles in French and German published in Belgium. Their attack is particularly targeted to Google News, which provides snippets of these articles, along with a link to the site. Copiepresse convinced the Belgian court that this violated their copyrights. The court ordered Google to stop posting these snippets, with a hefty daily fine if they refused. Google has complied while it appeals. Additionally, the Court demanded Google post its order on their Belgian site for five days, with which Google reluctantly complied. All of this only applies to Google's Belgian site, and Belgians can still readily access Google's other locations to find this material, but Copiepresse would like to see this extended to all of Google's sites. As long as they are opening the copyright can of worms, why not open the bucket of worms of one country's laws determining what viewers in other countries may read?
Google is not permitted to comment publicly about the case during the appeals, but Rachel Whetsone, European Director of Communications for Google, did post on Google's official blog that publishers can use the universal "robots.txt" standard to prevent their sites from being visited by Google and other search engines. Simply add this to the page's code, and Google will not display that site in its results. However, this does not appeal to the publishers who have something of a schizophrenic relationship with Google. They may not like Google posting their content, but they love the traffic Google brings to their site. So, rather than taking the easy step to keep Google off of their site, they would prefer to set the rules by which Google will be allowed to visit their site. While it is a bit unclear exactly what it is Copiepresse wants, an interview with Margaret Boribon of that firm published on Groklaw.net sounds like they want Google to license their content. In other words, Google should pay a fee for displaying this information, or provide some other benefit. Of course, if this happens, there could be all kinds of fees suddenly introduced into the searching process, and much of the free nature of the internet could disappear.
Google Loses A Skirmish In A Belgian Court
It's hard to see why companies like Copiepresse would object to these snippets which drive customers to their site, except maybe they believe they can squeeze Google into paying them for the right to send customers their way. What store wouldn't love to force newspapers to pay them for the right to carry their advertisements, instead of the other way around?
However, there is another aspect to this case that makes their unhappiness a bit more understandable. This has to do with Google's "cache." Many newspapers will make their articles free to the public online for some specified period, such as 14 days. After that, if you want to read it, you need to search the archives, and they charge a fee for access to the archives. So, on the fifteenth day, if you go to that page, you get a message to pay up or you can't read the story. What Google's cache does is to take an earlier version of that page, save it, and make it available at a later date. So, on day 15, when you can only retrieve the article by paying for it on the newspaper's site, you can simply retrieve it for free from Google's cache. At this point, you are no longer retrieving just a snippet of the article from Google, you are pulling down the entire thing from a copy housed on Google's servers. This is a bit different, a problem created by the fact that the publisher once offered the article for free, but now charges to view it. Of course, the publisher could avoid the problem by using the robots.txt protocol from the start, preventing Google from ever indexing the site. However, this would also stop the flow of traffic coming to the site from Google, traffic for which they do not pay, but are unwilling to give up in return for keeping Google from displaying articles.
These aren't easy issues to resolve, and this case leads to even more difficult ones. Google has been something of a gentle giant, living by a "do no evil" creed. Nonetheless, they have amassed enormous power over what we see by virtue of their great success. Right now, it does not seem so bad to allow them to make the rules, but what if at some point they decide to start doing evil? What, if like Fox, they decided to present only one side of political opinions? Would alternative views effectively be suppressed? Google has agreed to limit content in China in response to that country's threats to block access to their site. Could a future Google, free to set all of the rules about what will be seen and not seen, do something similar in the world which still sees itself as free?
Then there are the issues of international borders. The Belgian order is of limited effectiveness when it only applies to the Belgian site. To be truly effective, it must apply everywhere. That leads to the question, should Americans be limited in what they see based on a Belgian's court's judgment? If so, should the content Belgians see be limited by the decision of a Chinese court? It seems to me, you have to either answer yes to both or no to both, and I certainly would not want to be prevented from reading news the Chinese government, or maybe even Kim Jong Il, decided I should not be permitted to read. As noted at the beginning of this article, the Belgian court has opened a large can of worms, and it will take a long time to get them all back in there.