Google Belgian Copyright Case Could Set Europe Policy

(Corrects spelling of attorney’s name in third paragraph of story published Feb. 23.)

Google Inc. is fighting a Belgian ruling blocking it from publishing links to local newspapers on its online news service at a hearing today that could decide the fate of search engines and referencing services in Europe.

Google is appealing a 2007 Belgian court ruling that its news search breached copyright laws, forcing it to remove links and snippets of articles from French- and German-language newspapers. The judge in that case “seemed to have badly understood” the functioning of Internet search services, Google’s lawyers said.

“This case will have serious consequences to the way information is searched and managed” on the Internet, Erik Valgaeren, one of the lawyers representing Google, told the Brussels Court of Appeal today. “A negative ruling would put at risk all referencing services or even cause them to disappear.”

The court should “put an end to the hypocritical position” of the claimants and the “astronomical sums” they’re seeking, Valgaeren, who works in the Brussels office of law firm Stibbe, said at the hearing.

Copiepresse, a group that represents French and German- language newspapers, and an association that represents journalists on copyright issues, were among those that filed the original lawsuit after Google News was introduced in Belgium in 2006. Newspapers lose advertising revenue when Google uses snippets of their stories and direct links, said Flip Petillion, a Brussels-based partner with Crowell & Moring LLP, who isn’t involved in the matter.

‘Local Market’

“Let’s not forget this is a local market, so it’s a small and a hard market for the newspapers,” Petillion said. “Newspapers very much live from the income generated by ads.”

A win for the newspapers “might open the door to an entirely new set of requirements to operate in Europe that could diverge sharply from the North American market,” said Greg Sterling, an analyst at Opus Research in San Francisco. “Publishers might seek compensation from search engines” for what they call unauthorized use of their content.

There is “no exception” for Google in copyright law, the Brussels court said in its Feb. 13, 2007, ruling. The court ordered Google to pay 25,000 euros ($34,300) a day until it removed news content from Belgium’s French- and German-language publications. Flemish newspapers didn’t join the case. Google had to remove articles, photos and graphics linked to the papers “from all its sites” and cached copies visible in searches.

Second Suit

The newspapers have a second lawsuit pending against Google in which they seek up to 49.1 million euros for the period in which their content was visible on Google News.

Google presented its arguments today and the hearing is scheduled to resume in March. The Mountain View, California- based company gets no commercial benefit from linking articles because the news service is free, Nicolas Roland, another Google lawyer told the court.

“I wouldn’t tell you that Google is an entirely philanthropic company, it’s one with flourishing revenue, but these revenues come the advertising” the company sells via its AdWords service, Roland said.

The lawyers told the court newspapers have control over how their content is used by search engines, arguing the editors in this case “know the system” and “have used it.”

Highest Court

Due to its potential implications for search engines across Europe, the case could end up in the European Union’s highest court. The Belgian tribunal could ask the 27-nation EU’s Court of Justice for guidance on how to interpret copyright rules in cases such as these, Petillion said.

Google and the newspapers had to wait longer than they wanted for this hearing. The slowness of some Belgian courts was partly to blame, said Margaret Boribon, secretary-general for Copiepresse. It took about two years from the end of the written procedure, where written arguments between the parties and the court are exchanged, to get a date for today’s court hearing.

If Google wins its appeal, that would also mean the ruling can’t be used against search engines in other European countries, said Petillion.

“In Europe, if you do publish copyright-protected material without consent of the rights holder, then you have a problem,” said Petillion. Europe differs from the U.S. in that so-called fair use exceptions don’t apply.

The fair-use exception in the U.S. allows search engines to “scrape” content from copyright owners, said Sterling.

“Without this idea and legal framework, Google effectively couldn’t exist,” he said. “Google’s power, however, is such that everyone wants to be included in search results.”

The Belgian newspapers argue Google News doesn’t generate enough traffic to their sites to make inclusion attractive. Google News no longer references the newspapers involved in today’s case. Only Google’s main search site lists the newspapers, such as La Libre Belgique and Le Soir, the most-read French-language daily in Brussels.

“If Google agrees to pay,” the newspapers will come back to Google News, said Boribon.

To contact the reporter on this story: Stephanie Bodoni in Luxembourg at sbodoni@bloomberg.net

To contact the editor responsible for this story: Anthony Aarons at aaarons@bloomberg.net

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