US Copyright Suit against Google Over Copyright in French Headlines

Agence France-Presse (AFP) has filed a copyright infringement suit against Google in US District Court after Google put AFP headlines, photos and article leads on the Google News web page, http://news.google.com. AFP is seeking US$17 million in damages and an injunction barring Google from further publishing its news stories and photos. Google characterizes its web site as an Internet-based information location tool, which consists of links to news stories. The links are obtained by Google through the use of "webcrawlers" which search the web for news stories. However, unlike google.com where the search result links are text based, the links on Google News contain the article headline, a thumbnail photo and sometimes the lead of the article itself. Users who click on the headlines are then sent to the site of the original publisher, since the full story is not available through Google News. In response to the litigation, Google has stopped syndicating the news from sites using AFP. As a result, some subscribers of AFP have removed the AFP content of their web site so that they do not lose the traffic directed to their site. However, Google is not backing down and has filed an answer to AFP's complaint. One news source (BNA's Electronic Commerce & Law Report) reports that Google has argued that news headlines that are purely factual and merely 10 words long lack sufficient originality to preclude others from copying them. Google also argues in its answer to AFP's complaint that the fair use defence applies to its use of AFP's headlines, photos and article leads. In addition, Google argues that Google News follows widely published and known Internet standards that allow third party web sites to "opt out" and prevent Google's web crawlers from accessing their web sites. A similar issue was recently considered by the United States Court of Appeals for the Ninth Circuit, in Kelly v Arrabia (see a reference to the case in an earlier issue of E-TIPS®, Vol 4, No 9, October 26, 2005, "Google's Print Library Project Courts Copyright Controversy"). The Court of Appeals examined whether it was fair use for an Internet search engine, specializing in photos, to display its results as thumbnail photographs. It was held that the use constituted fair use under US law. The primary factor which led to this conclusion was that the thumbnails involved a transformative use of the photographs. They were used to direct Internet users to the sites where the photographs were available, rather than for an artistic purpose, the original use of the photographs. For an article on the suit and Google's initial response, see: http://makeashorterlink.com/?S64F11F1C http://blog.ericgoldman.org/archives/2005/03/initial_assessm_1.htm For AFP's complaint (in Agence France Presse v Google Inc, DDC, No. 1:05-cv-00546) see: http://blog.searchenginewatch.com/blog/050321-175410 For an update on the story see: http://research.yale.edu/lawmeme/index.php Google's answer: http://law.marquette.edu/goldman/afrgoogleanswer.pdf For an article on the effect of AFP's suit on sites which subscribe to AFP see: http://www.politicalgateway.com/news/read.html?id=3311 Summary by: Katharine McGinnis