Thursday, May 03, 2007

Belgian Newspapers Back on Google

To recap, Google was sued last year for copyright infringement by Copiepresse, which represents several Belgian newspapers, over Google News links to newspaper articles. Copiepresse sued in March 2006 after Google debuted a Belgian version of Google News. Google originally failed to respond to the lawsuit, so in September 2006, the judge ruled in favor of Copiepresse and ordered Google to remove the links to Copiepresse newspapers, as well as display the ruling on its homepage. Google than sought a rehearing, which it lost in February 2007, where the judge said that Google was infringing the newspapers' copyrights by linking to their stories.

The case comes down to Google's caching of the newspapers' archives. While the newspapers at issue initially offer their content for free, they charge for access to their archives. Their complaint against Google was that their articles were being cached and delivered to users after the point where the papers began charging for them. While the case implicates the issue of whether Google News needs to pay newspapers for simply linking to their stories, the central sticking point (and presumably why the lawsuit was filed in the first place) was Google's providing articles for free that the papers were charging for. After their loss in a Belgian court, Google removed all links to the newspapers, even to their homepages in the search results.

It now appears that a deal of some sorts has been struck as the newspapers are back in Google's search results, but there is no access to cached versions of articles. The technical fix is the use of the "noarchive" tag, used by other papers such as the NYT to prevent their articles from being archived in the Google cache. Ironically, Copiepresse originally balked at being forced to use such a self-help measure, arguing that Google couldn't impose this on copyright owners.

Common sense would suggest that NOT being in the Google index was hurting the newspapers far more than having Google cache and serve up paid content. Because of the characteristics of Belgian law, the decisions against Google were never that bad because they were confined to the parties involved (Google didn't need to make wholesale changes to Google News) and the decision carries no value as precedent (that's how it works there). So, when sued, Google was forced to remove all traces that these newspapers even exist and they have now come back to Google to be indexed.

While Google may have lost in court, it appears that their search business has been further validated by Copiepresse's apparent concession that it can't afford not to be indexed. Google's opt-out policy ("we will index and cache everything unless you stop us") appears, in the end, to have prevailed because that is exactly what Copiepresse has had to do to get back into Google's search results.

Any greater implications for this are unclear. While this was a peculiar case dealing with foreign law and the Google cache, the underlying theme is that content owners should avail themselves of the self-help mechanisms that do exist if they don't want Google indexing and caching their stuff. In the context of Book Search, that means opting-out of the program. With YouTube, that means following the DMCA takedown procedures. Book Search and YouTube are different from this situation, but Google's approach is the same: we're going to serve up what we can find online so defend it with easy to implement tags (robots.txt, noarchive) or ask us to remove it.
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