Google and Belgian Newspaper Copyright Case: Headed for an Appeal

On February 13, 2007, Danny Sullivan of Search Engine Land reported that:

“[On re-hearing, a]… Belgium court has found that Google did violate copyright when including material from several Belgian newspapers in its search index. Google may have to pay a fine, but the ruling is far more positive for the company. Google can continue to index content without explicit permission...

Google loses copyright case launched by Belgian newspapers from the Associated Press and Google Breached Newspapers' Copyright, Court Rules from Reuters…explains that Google will have to pay a retroactively daily fine of €25,000 (about $32,000) for the it failed to remove content after Belgian newspaper group Copierpresse asked for removal of its members' material.”

Sullivan continued:

“I've just talked with Google's public relations department in Europe. Some more points on the story.

First, they are appealing the ruling. Didn't they already appeal it? No, it was a rehearing of the original case, granted because Google wasn't present to defend itself the first time. Now that the case has been reheard, an actual appeal to a higher court can happen.

* * *

I've now talked with Yoram Elkaim, legal counsel for Google who oversees Google News legal issues in Europe. First I asked more about the ruling is not seen by Google to set a precedent:

‘[Google replied], [b]ecause of the legal system in most European countries, there is no rule of precedence. That means the court here was really asked to apply the law on the specific situation and on the plaintiffs in this situation…’”

The Associated Press breaks this story down further:

“Copiepresse said the ruling was based on EU law and could trigger similar cases against Google in other nations, mentioning talks with copyright groups in Norway, Austria and Italy.

But Google said the judgment — which confirms an initial ruling in September — would not necessarily carry influence in other areas.

‘This ruling does not mean that everywhere else or every other judge in any other country would rule in the same, even in Belgium," said Yoram Elkaim, legal counsel for Google News. "There are conflicting rulings on those issues which are fairly new and complicated.’

U.S.-based technology lawyer Jonathan Band said the ruling was neither final — as it can be appealed to higher courts in Belgium — nor did it bear much weight since legal precedent is not as important in Continental European law.

‘I'm sure other newspaper publishers are probably going to read the decision carefully but the most important factor is that it's not the ultimate ruling,’ he said.

In the U.S., Internet search engines have been able to call on "fair use" to defend the republication of text excerpts and a similar system exists in British law.

‘On the Continent, they don't have that,’ he said.

Google said the court still had not settled the debate on what the ruling covered, claiming it only applied to Google News Belgium and google.be.

‘In our view we have complied with the ruling fully since September,’ Elkaim said.

If the court agrees, Google would not have to pay retroactive daily fines of €25,000 (more than US$32,000) for each day Google did not comply — far lower than an earlier judgment that threatened €1 million (US$1.3 million) a day.

But Copiepresse lawyer Bernard Magrez claimed Google was still not complying fully with the ruling — saying it covered google.com and other versions — meaning fines could run up to around €3 million (US$3.9 million) or €3.3 million (US$4.3 million).

Copiepresse is still negotiating similar copyright issues with Yahoo and MSN.”

For a look at the September 5, 2006 Order from Belgian Court, check out this link. Among other things, the Order states that:

“…[T]he defendant [is ordered] to withdraw the articles, photographs and graphic representations of Belgian publishers of the French - and German-speaking daily press, represented by the plaintiff, from all their sites (Google News and "cache" Google or any other name within 10 days of the notification of the intervening order, under penalty of a daily fine of
1,000,000.- € per day of delay”