Google’s Lawyers Are Busy Throughout Europe, From Fighting A Possible Italian Criminal Case Based on Editorial Responsibility To Copyright Issues In Several Countries That Really Are About How To Get Hold Of Google’s $$$

Philip M. Stone November 27, 2006

Europe is a heavy brief for Google media lawyers – arguing copyright issues in a Belgian court, negotiating with Danish publishers whether it should be “opt-in” or “opt-out”, settling with Belgian journalists, negotiating with Norwegian journalists, confronting a video copyright issue in France, and if that wasn’t enough there is now a criminal investigation in Italy on the search engine’s editorial responsibility.

But do newspapers?

Many of the copyright problems involve not just newspaper publishers but also editorial personnel. Does Google have the right to send search viewers directly to a newspaper’s site by previewing up to 150 words of the story without that newspaper agreeing first to be part of the program?  Many European publishing groups say no; Google says yes. And what rights have the journalists who wrote the stories or took the pictures?

And now in Italy it is involved in a criminal investigation based on whether it has a legal responsibility for what is uploaded on its site. Google’s position is if offensive material is brought to its attention it will remove it. But by allowing visitors to upload unedited video then does Google have the responsibility to monitor its site and remove what shouldn’t be there, or can it just wait until someone complains?

The Italian case has taken prominence because of a video uploaded to Goggle’s Italian site that has shocked the nation. It is particularly nasty video showing four teenagers beating a 17-year-old autistic boy and otherwise making his life very miserable. The incident occurred in Turin where the teacher and four students have been placed under official criminal investigation and the students suspended from school.

Google removed the offending video once there were complaints and said it was sorry for any distress. But the legal question is whether Google faces any criminal liability for not monitoring the posting and does existing law actually require it to monitor its own site.

In Italy legislation regulates what offensive topics should not be published in newspapers or seen on television, And government officials say those same laws apply to the Internet. That’s difficult for a Google to implement since it has no editorial desk per se, and yet it accepts thousands of videos uploaded to its video site each day. Is Google just an information distributor to whom those laws don’t apply or does it have editorial responsibilities even for uploads made by others?

On the copyright front, there is an increasing thought that what publishers are really after is to squeeze some money from the world’s largest media company that has a stock market value of $154.61 billion with its shares closing last Friday at $506. Google got a wakeup call from a Belgian court in September and since then it is taking European copyright law seriously and shows up to plead its case.

The Belgian Publishers Association (Copiepresse) had complained in court (without Google present for reasons it still hasn’t explained) that its complaining members should not be included in Google’s Belgian site as news sources for copyright reasons and the court, hearing just that one side of the argument, agreed. It ordered the 17 offended Belgian newspapers removed from the site, and if Google didn’t do it within 10 days of the ruling there would be a €1 million daily fine. That got Google’s attention.

Under court rules Google was able to get another hearing where it was present and after a three hour hearing last Friday the judge said she would issue her ruling early next year. But Google’s lawyers didn’t pull any punches in saying it is all basically a play by the publishers to get money out of Google.

“What’s at stake today is not copyright but money,” Google lawyer Erik Valgaeren told the court. Google top management is known to believe that this court case is   little more than a business negotiation being conducted before a judge.

The fine point of law as far as Google is concerned is that it is not hosting its own information – therefore not taking complete stories from the publishers and using them without copyright approval – but rather it is just a search site that sends visitors off to the originating web site. What more could a newspaper want – Google raises the profile and traffic of each newspaper visited. 

What may be the deciding factor is the no-more than 150 words that Google News does print on its own news site from the story and offering the hyperlink to the originating site. Are those 150 words and thumbnail pictures in violation of copyright?

Publishers, of course, see it in a different light. Their lawyer told the court, “Google sucks up content from web sites and recopies it onto its site.”

Google says it removes any newspaper as a news source that so requests.  That’s what Belgian Flemish language newspapers such as Der Standaard asked and they did not join the lawsuit, whereas the other Belgian publishers decided to sue instead of seeking removal -- perhaps an indication that what is behind all of this is not whether they should be a Google news source but rather if they should get paid for being a Google news source.

The newspapers gain financially from the Google viewers who hyperlink to their sites. Their advertising rates based on the number of visitors benefit from those Google visitors. 

But in a sign that Google is coming to internal terms with copyright issues the company announced last Friday it had reached agreement with Belgian groups Sofam and Scam that represents journalists, including photographers, on copyright issues. A Google spokesperson refused comment about any payment structure, in fact, on any details of the agreement. The fear there, obviously, that whatever it has done for one country’s journalists will be expected elsewhere, too.

Meanwhile the copyright issues pile up.  In France, a French film company says a film it produced, “Le Monde Selon Bush” (The World According to Bush) was uploaded without authorization onto Google’s French video site and had more than 43,000 views before Google took it down. Flach Film charges Google Video France of violating intellectual property laws on a film targeted for theaters and DVD and it wants Google held financially responsible by the Commercial Court for losses the upload has caused.

Google continually says that such unauthorized uploadings are against its terms and conditions for accepting uploads, but if someone breaks its rules is that enough legal protection? Makes one wonder what lies ahead for Google following its $1.65 billion purchase of YouTube. If unauthorized movies are uploaded and accessed are Google (YouTube) and other such video sites just simple hosts or are they fully responsible publishers?

Elsewhere in Europe, Google had to postpone last week the launch of its Danish news site after newspapers demanded an opt-in system rather than opt-out.  And in Norway photographers are complaining about the use of their pictures as thumbnails.  “According to Norwegian copyright law, you are not allowed to use photos without permission from the right’s holder,” according to Pernella Borset, associate director of the Norwegian Media Business’ Association.

Obviously, journalists and publishers are looking to get money out of Google since the Google service could not exist without them. Google, on the other hand, says there are millions of sites out there with whom it would have to ask permission if opt-in became the norm and that was just not practical.

There are solutions out there ranging from code telling search robots not to pick up certain material (publishers don’t like that because it does not embrace the opt-in system) to new electronic systems being developed that can electronically ask a site whether its material can be included.

Trouble with the latter, for Google, is that it will probably get back an electronic answer like, “How much are you going to pay?”

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