Belgian press sues Yahoo!, Google
By Gareth Powell
The news is very easy to record. Yahoo! (and Google and Microsoft) are being told by a group representing Belgian newspapers which allege there is a breach of copyright in linking sites to newspaper stories. Not the full story, just a link. Margaret Boribon who is secretary-general of Copiepresse, a group that includes 17 French and German-language Belgian newspapers. said, ‘We sent a formal letter to Yahoo! yesterday, requesting it to remove all links to our newspapers’ content.’ If Yahoo! does not respond and comply then the intention is take it to court.
What Copiepresse is claiming is that Yahoo! violates copyright laws by giving Internet users access to archived newspaper articles which the papers themselves charge people to read.
A year ago, Copiepresse took Google News to court in Belgium to stop it reproducing links, and therefore some content, from French-language and German-language newspapers in Belgium on its Belgian website. On September 5, a lower court ordered the California-based company to desist, and said it would face a daily fine of one million euros ($1.3 million) if it did not stop the practice. Google appealed the decision and a verdict is expected by the end of the month.
So that is Yahoo! and Google. And to make it a trifecta the newspapers also asked Microsoft to stop the unauthorized publishing of articles on its Belgian MSN site and MSN did exactly that.
Google, in its appeal, argued that it doesn’t violate copyright because it only summarizes articles and displays the source of the content and the name of the author before directing users to the Web page hosting the content. This strangely is the same defense used by a young person in Hong Kong — and he has ended in prison.
Chang Nai Ming was convicted in Hong Kong on October 24 2005 is part of what became know as the Big Crook case. Chang Nai Ming was charged with distributing a copy of a copyright work. There were three charges and he was sentenced to three months on each charge which you, like me, might think of as Draconian but Hong Kong is trying to make an example of people who breach copyright.
What, in fact, he had done was make copies available through BitTorrent. What the defense said, and this echoes the Google argument, is that he had not distributed — and this is the word used in the relevant law — anything. The word ‘distribute’ implies a positive act. The defendant’s action were, like Google’s, totally passive. The defense read: ‘The acts in breach of the law, if they were in breach of the law, which was a separate argument, were those of the downloaders, not the defendant. He did no more than leave his computer in a state where others, if they chose to do so, could access and take material from it.’
The judge, the Hon J. Beeson, rejected this argument and confirmed the sentence. It is difficult to see what other course the judge could have taken. Most people are, of course, totally opposed to a prison sentence being imposed in such a case. But the case does seem to have been tried efficiently and fairly.
Because you gain no monetary gain from the commission of a crime may be a mitigating factor when sentencing but it does not affect the decision as to whether you are guilty or not. I break into your house. I steal things which are valueless. I am still a burglar.
The defense claims he did nothing active to distribute the said works. Indeed, he did. If he had not made them available on BitTorrent it would not have happened. So, yes, he was active. First he put the works on his computer, then he arranged them so they could be downloaded. Then he let people know they existed ready for downloaded. If that is not action then nothing is. The fact that the distribution was automatic and only happened when another person requested it is interesting but not to the point.
Would any of this happened if he had not intentionally set up his computer and then publicised it as being available? There is a plain answer. The fact that BitTorrent works automatically once it has been set up to distribute does not change the fact that it has to be set up.
All sympathies can be with the defendant. But as a question of law the judge was correct. He did do something actively to arrange those works for distribution therefore he is guilty.
The same argument can easily be applied to MSN, Yahoo! and Google. And in each case the argument that it is the downloader who should be charged, not them, will not fly. MSN plainly has been advised this is the case and come to a settlement.
However, in the United States a case before the Court of Nevada, Blake A. Field v Google was decided the other way. Essentially it found: serving a web page from the Google Cache does not constitute direct infringement, because it results from automated, non-volitional activity by Google servers,
But that is the United States where there are both fair use and safe harbor laws and these do not exist in other jurisdictions.
What both Yahoo! and Google perhaps should do is remove all reference to any of the offended publications from their sites. That would be a far, far worse punishment for the newspaper publishers than any they could handed out to the search engines.
Indeed, Copiepresse has already complained:’Copiepresse Upset Ruling On Google Wasn’t Visible Enough’; reads the Google entry.
Take every Belgian newspaper entry out of Google and the complaints will rise to the heavens.
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January 19th, 2007
Sounds like good old fashioned ignorance and/or greed to me. If the Belgian press doesn’t know how the Internet works and doesn’t want to follow the standards of using the Internet like everyone else, then they need to GET OFF the Internet. Period. Just because I can plug a phone in doesn’t mean I can just start calling random people and giving verbal threats. Just because I can drive a car doesn’t mean I can just drive through parks and on the sidewalk. There is an Internet standard that already exists for robots. If you don’t want a search engine to crawl your website, use the robots.txt file. Period. There are other search engines such as Altavista, Ask, and others. There are also likely hundreds of other hown-grown search engines out there as well. If you don’t want these search engines to crawl your website, just place the properly formatted robots.txt file on your website and be done with it. If a robot doesn’t follow the rules, THEN sue. By just suing the top 3 search engines because you don’t feel like following the standards is either ignorance, greed, or both. And if Yahoo is linking to archived articles that are supposed to be paid for, that’s a lack of the press site’s poor security mechanism, not a problem for Yahoo to sort out. You can’t just attempt to “hide” articles in some “mystery folder” and then expect users not to find them. By installing a web server on my machine, putting files into a non-secured folder, then plugging this machine onto the Internet, and registering a domain name so that my machine can be easily found, *I* am responsible if someone ends up getting that file. If I don’t want anyone to access the content, I should just unplug the machine. If I want only “authorized” users to access the content, I should implement a security mechanism. If I only want real people, and not robots, to access my content, I should use the robots.txt file. It’s not rocket science.
January 19th, 2007
Those are excellent points you make about Yahoo! Google and so on. In fact there are two parts of your note which struck a resonant chord with me. The first part is where you metioned ‘greed’ which is, I think, very seriously the motivating factor.
The second point, somewhat shames me. I had forgotten that you can, of course, hide your web site so that search engines disregard it. Indeed, with some stuff in China I do that automatically.
Your points are well taken.
Gareth