Google News Lawsuit Update

A few interesting bits to follow up on Sunday’s entry about Agence France Process vs. Google.

It turns out this suit was filed in the United States, not France as I had suspected. Eric Goldman has posted the complaint, which was filed in Federal District Court in the District of Columbia.

AFP alleges (in Paragraph 23) that Google sells advertising as part of its service, presumably setting up an argument against fair use. Google has scrupulously avoided placing advertising on Google News, however, presumably also for the same reason. I wonder if Google’s attempt to “fence off” it’s “noncommercial” content will be effective in asserting a fair use defense—I’m not aware of any law directly on point.

Another interesting allegation (Paragraph 76) is that Google removes the AFP watermark from AFP images, which, if true, leads to liability under the DMCA. It seems unlikely to me that Google would actually digitally process images to remove watermarks, though. Perhaps the news sites who publish AFP images, and from whom Google extracts content, remove the watermarks. AFP’s claim that Google removes “AFP” from the text of the byline seems more plausible, but perhaps less actionable as copyright management information.

The article I linked earlier on this subject mentioned:

AFP say Google have ignored all attempts to stop the indexing while Google say all publishers have the option of not being indexed and included in Google News.

My guess here is that the Google News crawler does respect robot instructions, and the crawler is not actually getting any content from AFP directly—instead, it is indexing other publications that include AFP syndicated content. Arguably, then, if Google is a direct infringer, then the publications from which Google is grabbing content are contributory infringers for not excluding their content from Google’s system.

This leads to an important question, which is: what is the default assumption when you post something on the web? Under copyright law, it’s fairly clear that the default is “all rights reserved,” and you need to ask permission to copy, modify, redistribute, etc.. Under the modus operandi of the web, however, it seems the default assumption is that reproduction such as caching and indexing in search engines is okay. So do news publications that carry AFP content have a duty to exclude the Google News crawler from their sites in order to avoid liability for contributory infringement, or does Google have a duty to ask permission from each and every publication, and then possibly from the “upstream” publisher (in this case AFP), before it can quote any material, setting aside any fair use defense for the time being?

It seems to me that the most efficient result here would be to assume certain uses (caching, indexing, summarizing) can be made of content on the web unless the publishers indicates otherwise, through a robots exclusion file or some other standard method. This would be consistent with certain areas of the law that require a fence to be set up around property before it will be protected—for example, information cannot be protected as a trade secret unless the owner of the information actually takes step to preserve the secrecy. This approach would be, however, inconsistent with the weight of authority in copyright law, which is that the author need not take any steps to protect the work to receive the protection of the law.

Update: Professor Eric Goldman’s analysis of the case, also discussed on the Trademark Blog and John Battelle’s Searchblog.