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Internet behemoth Google just lost an important intellectual property lawsuit in Belgium. The case raises important ethical questions regarding intellectual property in the Internet age.
Google offers a Web site called "Google News." The site, operated in many locations and languages around the world, includes headlines and brief citations from newspapers and wire services. In addition, the regular Google search engine includes not only links but also actual copies of news stories. Some of the French and German language papers cited on the Belgian version objected to the use of their material, and two court rulings, one in September and one this week, upheld their claims.
Let's try and construct the chain of arguments here. Our first instinct is to vindicate the newspapers. After all, there is no dispute on the basic facts of the case: the material being cited is copyright, and Google is displaying it without permission of the copyright holder.
What then is Google's claim? They claim that the citations are "fair use." In the US and other countries, copyright protection is not absolute. Limited citations are permitted as "fair use." A common ethical justification for this exception is that intellectual property law in the US was never conceived as an absolute right. The Constitution gives Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Since the entire basis of the law is to promote the public good, and not for the protection of authors per se, the application of the law also seeks a balance between the rights of the author and those of the public.
The fair use criteria include the purpose of the copying (commercial vs educational); the nature of the work (what is original about it); extent of copying and extent of impact on sales (thus the amount of harm).
Google's argument is that the snippets are "fair use." The main claim is that the text is not really used at all; rather, Google News is really just a search engine that enables people to find newspaper articles on subjects of interest. It is really a kind of "educational" use including just enough information to let readers know if they want to go to the original.
A closely related claim is that Google News, like the regular search engines, allows Web sites to include a special tag that excludes them from web searches or caching. So the suing publications are giving implicit permission for the use of their material by declining to opt out.
This claim is not so simple. Google News describes itself as "Aggregated headlines and a search engine," and I would agree with this ordering. The first thing you get there is a kind of overview of world and local news; afterwards, you can click on the actual article.
So the actual citation certainly is of some value.
On the other hand, there is no question that the newspapers cited obtain immense benefit from being included on the service. Thousands of users are directed to the home Web site through the Google News site and the search service. It seems a bit unfair and even unwise to bite the hand that feeds you so many eager readers.
I suspect that the real issue here is not fair use at all, but rather the "terms of trade." Viewing Google News as "fair use" is stretching things a bit, especially under the European understanding, which is more restricted. On the other hand, Google is not only using material from these publications but also providing them with a substantial benefit, which is not at all necessary for the "fair use" exemption. (Although some scholars have claimed that some aspects of fair use, for example use in a review, actually are based on their benefits to the author.) This is what is really driving the forbearance shown Google in other places.
Indeed, although the Wall Street Journal headline proclaims "A Google loss in Europe may spur other lawsuit," the actual article adds that "Denis Bouchez, director of the French National Newspaper Association, said, 'We're not going to sue them for the time being.'" (Jerusalem Post readers, note that these brief citations from the Journal fall within the fair use provision.) I'm guessing that the economics in larger markets, where there are more newspapers, make it more advantageous to be featured on Google News, so providers in these markets are not anxious to rock the boat. But the smaller Belgian market, further sliced up into three languages, changes the math.
Perhaps this is the reason that the French-language site was not attacked even within Belgium.
Our recent article on YouTube, which was recently acquired by Google, reached the same conclusion. The "new math" of fair use is no longer balancing benefit of the author against that of the public, but rather of the economic benefit to the author versus that of the copier. This math is far more dynamic, and I think we can expect more isolated, local or sectoral lawsuits against the search and clipping services against a backdrop of a vast majority of content providers who benefit too much from the traffic these services provide to dare to rock the boat.
The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.