March 19, 2005

France defies Google

Perhaps inspired by Jean-Noël Jeanneney, Agence France Presse (AFP) is suing Google for copyright infringement. According to Reuters:

The French news service is seeking damages of at least $17.5 million and an order barring Google News from displaying AFP photographs, news headlines or story leads, according to the suit filed on Thursday in the U.S. District Court for the District of Columbia.

According to the same story, Google must be prepared to argue this one out in court:

AFP said that it had informed Google it was not authorized to use AFP's copyrighted material as it did and that it had asked Google to stop.

Google has ignored those requests, AFP's suit alleges.

I suppose that it's for this reason that Google News continues to be called "beta", and also that it doesn't offer any advertising. If Google can win this fight, it would be a rare legal triumph for the concept of "fair use", which I assume would be the basis of their defense. As the U.S. Copyright Office explains, section 107 of the U.S. copyright law "sets out four factors to be considered in determining whether or not a particular use is fair:"

  1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

In this case, the argument for Google would be (1) that Google News has an educational (and experimental) function and does not generate revenue for Google; (2) that the material cited is available to the public on the web in any case; (3) that only minimal amounts are cited, just enough to allow readers to determine whether or not to click through to the source; and (4) that the effect on AFP is positive, since it brings more readers to sites that run their stories (and may run advertising as well).

This doesn't take into account the "Anglo-Saxon perspective" that pained M. Jeanneney so keenly, though congeniality of national perspectives is not one of the factors recommended by section 107 for determining fair use. But I'm not raising Jeanneney's arguments as a joke, since AFP is chartered by the French government, giving it roughly the same status as Xinhua or Voice of America. Well, it may be technically somewhat more independent, but it would be surprising if AFP took a step like this without government consultation.

I'm not a lawyer, and have very little understanding of the current dynamics of copyright law. However, this strikes me as a fortunate case for defenders of fair use, since it pits one of the most popular and innovative U.S. companies against the news agency of the French government, who presumably have less influence in the Federal Court system (and on Capitol Hill) than Disney does. Of course, Google might avoid the fight, for instance by agreeing not to index AFP.

[Update: some news reports quote "Google spokesman Steve Langdon" as saying "We allow publishers to opt out of Google News but most publishers want to be included because they believe it is a benefit to them and to their readers." This is in direct contradiction to AFP's charge that they've asked Google to stop crawling their stuff but that "Google has not stopped despite repeated requests."

This odd discrepancy will presumably be cleared up soon. My own guess is that it's a question of where the material is aggregated from: not from AFP's site, but from the sites of newspapers that subscribe to AFP and reprint its stuff under license.]

[Update #2: Edward Hasbrouck thinks that writers ought to be rooting for AFP. And Dana Blankenhorn says that AFP's site has no robots.txt file.]

Posted by Mark Liberman at March 19, 2005 03:08 PM