Sunday, 20 March 2005
AFP sues Google for copyright infringement
In what I expect will prove the most significant test case since Tasini vs. New York Times (in which the U.S. Supreme Court found the Times liable for damages to writers -- which it still has yet to pay, more than three years later -- for systematic electronic bootlegging of articles to which it had purchased only print rights) of rights to electronic distribution of written text, and possibly the most important case to date on the limits of permissible Internet archiving, excerpting, and redistribution without the consent of copyright owners, Agence France-Press (AFP) has filed suit against Google for the inclusion of AFP news headlines, leads, and photo thumbnails in the Google News Web site -- a site that might more accurately be titled "News Stolen by Google" than "Google News".
Publishers of music and video have taken vigorous legal action to police their copyrights against Internet and other electronic infringement, through action against Napster, individual "file sharers", and the like.
Publishers of text have taken little similar initiative against infringement, even against such all-encompassing schemes of infringement as redistribution of "cached" Web pages by Google and Archive.org.
Publishers (such as the New York Times, Time Warner AOL, Newsday, Lexis/Nexis, and the other big media conglomerates convicted of wholesale plagiarism in the Tasini case) have been the leading thieves of electronic rights to freelance writing. AFP vs. Google is one case, however, in which publishers and writers have a common interest in protecting their rights against electronic plagiarism. Authors -- who are rarely able to afford litigation like this -- have a great deal at stake in this lawsuit, and a great deal to gain if AFP is successful.
On first reading of the news report on the lawsuit (I have not yet seen the complaint), two issues would seem to be at the heart of the case:
- Is Google's commercial use of the entirety of AFP's headline news feed, as well as the leads of every AFP story, "fair use"? This seems highly unlikely, given the statutory factors in determining "fair use", the comprehensiveness and quantity of the redistributed material, and the fact that Google is doing so as a commercial service that generates Web traffic, brand awareness and loyalty, and advertising and other revenues for Google. As a wire service, AFP sells a variety of information products, including a headline and news summary feed whose value is largely destroyed by Google's systematic and complete bootlegging of it.
- Can Google permissibly engage in this Internet redistribution on an "opt-out" basis ("We're allowed to put your words on our Web site until you ask us to stop"), or does Web reproduction without an "opt-in" or license from the owner of the relevant rights constitute infringement? According to initial news reports, AFP says that Google ignored AFP's requests to cease and desist, while Google claims that AFP could have "opted out". That suggests to me that Google would have allowed AFP to "opt-out" only if AFP had explicitly or implicitly conceded that Google's actions prior to that "opt-out" were legal, without the need of any license from AFP. But that's clearly, unambiguously, and directly the opposite of what the current copyright law in the USA (and most other jurisdictions) provides: If what Google was doing was such that AFP had the legal right to "out out", then it required an affirmative grant of rights from AFP to be legal in the first place. Copyright infringers cannot protect themselves against liability by providing an opportunity for copyright holders to opt out of having their work stolen. Nor should they be able to do so.
Google is also claiming that its reproduction of AFP headlines and leads benefited AFP by generating traffic to the AFP Web site. But if that were true, AFP would be giving away their news headline and summary feed to any Web site that wanted it, rather than charging for it. And, more importantly, possible benefit from the infringement to the copyright holder is legally relevant only to the amount of damages for which the infringer is liable, and not at all to the definition of infringement. "I bootlegged your work for what I thought to be your own good", even if true (which it rarely is), is not and should not be a defense to a complaint of copyright infringement. If the copyright holder thinks that a particular usage would be beneficial to them, in their own judgment, they can license it for free or for a reduced price.
Any precedent set in this case will likely be directly applicable to Google's distribution of archived or "cached" Web pages and Usenet postings, to the Alexa division of Amazon.com, and slightly less directly to Archive.org (which might be distinguished with respect to fair use by being operated by a non-profit entity rather than a for-profit corporation like Google).
Among the many consequences of Internet bootlegging on the scale practiced for different types of texts (Web pages, Usenet articles, books, etc.) by Google, Alexa, Amazon.com, and Archive.org is an almost total sabotaging of the potential revenues to writers from excerpting or long-term or time-limited licensing or resale of electronic rights to their work. Even if a writer licenses a work for only limited-duration electronic distribution, Google and others make it available in "cached" form in perpetuity, making it essentially worthless for resale once the original license expires, and depriving the author of any opportunity to earn advertising or other revenue through viewing of the archived article. (In marked contrast to the situation with respect to ongoing compensation for re-use of "residual" rights in music, film, and video.)
Federal lawsuits take years, but this one warrants watching as it crawls through the courts, and joinder as friends of the court by writers, writers' organizations, and writers' advocates.
[Addendum: Legal complaint (PDF) by AFP against Google.]Link | Posted by Edward on Sunday, 20 March 2005, 14:13 ( 2:13 PM)