Google v. Belgium “link war” ends after years of conflict

The dust has settled on the latest skirmish between Google and the gaggle of Belgian French/German language newspapers represented by the Copiepresse newspaper trade association. “LaLibre.be returns to Google,” one of its flagship newspapers reported on Monday. That is to say, the disappearance of Copiepresse publications from all Google search venues, first noticed on Friday, has been fixed.

Google acknowledged this restoration in a statement sent to us.

“We are delighted that Copiepresse has given us assurances that we can re-include their sites in our Google search index without court-ordered penalties,” Google Communications Manager Jeannie Hornung explained. “We never wanted to take their sites out of our index, but we needed to respect a court order until Copiepresse acted. We remain open to working in collaboration with Copiepresse members in the future.”

A May 5 appeals court order upheld Belgium’s right to restrict Google’s search activities in that country, and it led to Google pulling the newspapers from its search index. But the blogosphere is left scratching its head at this five-year old legal battle, which began with Copiepresse newspapers and Belgian journalist groups demanding that their articles not appear on Google News and its cached remnants.

Whatever you think of this request, the feud pushes into sharp relief the ongoing stalemate between nations seeking to control cyberspace within their national borders and huge Internet companies like Google that want to standardize the rules of digital engagement across the global board.

Meet the King

On September 5, 2006, Google’s Mountain View, California headquarters received a “Prohibitory Injunction” from the Court of First Instance of Belgium.

“WE, ALBERT II, KING OF THE BELGIANS, MAKE KNOWN TO ALL PRESENT AND FUTURE,” it read, “that the Court of First Instance sitting in Brussels has pronounced the decision of which the text follows:”

The Injunction noted that Copiepresse had, on the basis of copyright infringement concerns, asked the court to order Google to withdraw all the articles, photographs, and graphics of its Belgian publications from the Google News site, “under penalty of a daily fine of €2,000,000 per day of delay.”

To evaluate the appropriateness of the complaint, the president of the court had submitted to an expert the problem of Google indexing Copiepresse articles on Google news. From his testimony, the court had determined that “the way in which Google News presently operates causes the publishers of the daily press to lose control of their Web sites and their contents.”

The service also “circumvents the advertising of the publishers who get a a considerable amount of their revenue from these advertisements,” the court document explained. And the use of Google News “short-circuits many other elements such as reference to the publisher, reference to protection of copyright, and reference to the authorization or not of the use of the data,” it concluded.

On the basis of these findings, the court found the Copiepresse claim admissible and ordered Google to withdraw the outlined content “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.” [We couldn’t find the end parenthesis to this sentence, either.]

But wait a minute

As you can see from that last quote, there’s a bit of ambiguity in the injunction. First it says “from all their sites.” Then it parenthetically stipulates “Google News and ‘cache’ Google or any other name.”

Google announced that the company would appeal the verdict, the search engine giant’s European Director of Communication Rachel Whetstone disclosed on the Google Blog. But the firm also read the court order from the beginning of the line.

“In September a court ruled in favor of Copiepresse and ordered us to remove these publishers’ content from both Google.be and Google News,” Whetstone explained [our italics]. “We did this within the time specified.”

According to Copiepresse newspaper La Libre Belgique, this caused an unanticipated result (warning—Google translation ahead). Google chose to comply with the order, but “in retaliation, was also stopped for several months to no longer reference the sites of these newspapers on its main search engine, thus depriving them of a share of traffic,” a Friday summary of the conflict’s early history disclosed.

But by May 2007, “Google had nevertheless agreed to reference again the newspaper sites,” the article added, “while running in parallel a long legal battle.”

Irrelevant judgments

The long legal battle did not go well for the company. Google lost yet again in a higher Belgian court, as it noted on its blog in early September of that year.

This judgment is clearly disappointing, and we intend to appeal it because we believe that Google.be and Google News are entirely legal and provide great value and critical information to Internet users. However, we are very pleased that the judge agreed Google should be given notice of articles and other material that content owners want removed. As we have in the past, we will honor all requests to remove such materials.

It is important to remember that both Google Web Search and Google News only ever show a few snippets of text. If people want to read the entire story they have to click through to the Web publisher’s site where the information resides.

But it appears that one of the reasons that Google continued to come up short was because it adopted something like the same legal strategy that Yahoo had embraced when ordered by a French court in April of 2000 to stop selling Nazi memorabilia on its auction websites. France “wants to impose a judgment in an area over which it has no control,” Yahoo CEO Jerry Yang declared at the time—that area being the United States, land of the First Amendment.

France’s courts were not impressed with this argument. Belgium’s courts weren’t, either.

“Google maintains that American law should prevail on the grounds that it is in the United States that it inserted, on its servers, the pages published on the Belgian websites of the Belgian newspaper editors,” the latest decision from Belgium’s appeals court observed:

Assuming that the physical location where the pages published by the members of Copiepresse would have been inserted in the Google search engine would be relevant to determine which law is applicable, it should first of all be established that Google does not produce a single document which corroborates that this takes place in the United States.

It is therefore likely that it intervenes in several countries in the world.

The opinion then quoted the Berne Convention for the Protection of Literary Artistic Works of September 9, 1886: “Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.”

According to the ruling, Google interpreted the Berne Convention to say that “the law of the country where protection is sought is not that of the country where the harm was sustained but that of the country or the territory in which the offences took place, in this case the United States.”

“This judgment is irrelevant,” the court opined, and “does not apply to the facts of the case,” contending that other sections of Berne more aptly applied.

It’s brutal

The court also rebuked arguments that it is users who copy content when they access a “cached” news item. And the judicial body nixed Google’s contention that its news service only provides a hyperlink to and a quick snippet of a given news story: “‘Google News’ does not confine itself to placing hyperlinks but reproduces significant sections of the publisher’s articles,” said the court.