Wednesday, March 23, 2005

AFP sues Google over Google News for copyright infringement in D DC

The French news agency AFP is suing Google in the District Court for the District of Columbia for copyright infringement by virtue of Google's pulling together photos and story excerpts from thousands of news Web sites.

The issues raised by AFP may have profound implications for blogs and bloggers, who are becoming more frequent destinations for seekers of news. The case may turn on whether Google can persuade the courts that Google News constitutes permissible "fair use" of copyrighted material under 14 USC 107. Although some legal scholars say Google could argue that it adds value by significantly improving the news-consuming experience without greatly harming AFP's ability to sell its service, there would still be an issue of derivative work infringement.

text from Anick Jesdanun of AP-->

AFP lawyer Joshua Kaufman said the lawsuit would nevertheless proceed because damage already has been done.

The Google News service, which debuted in 2002, scans some 4,500 news outlets and highlights the top stories under common categories such as world and sports.

Many stories carry a small image, or thumbnail, along with the headline and the first sentence or two. Visitors can click on the headline to read the full story at the source Web site.

Yahoo Inc. has a similar service, though it uses human editors and pays some news sources, including AFP and The Associated Press, for rights. (Google wouldn't comment on any similar financial arrangements.)

In a statement, Google spokesman Steve Langdon said Web sites can request removal though most "want to be included in Google News because they believe it is a benefit to them and their readers."

In fact, AFP's own Web site includes a "robots.txt" file that spurns search engines, essentially telling them to avoid indexing its news pages.

But the case is complicated by the fact that the stories come not directly from AFP but from its subscribers, some of which might want the rest of their sites indexed to generate ad-boosting referrals.

The fair use argument will likely draw upon a 2002 appeals court ruling that thumbnail images serve a different, transformative function as compared to full-size originals — and thus constitute fair use.

But Charles D. Ossola, who handled that appeal on behalf of the copyright holder, said that ruling may not apply to the use of text, given that summaries can be rewritten whereas images cannot for search purposes.

A 1985 Supreme Court ruling on a non-Internet copyright dispute found that small excerpts can constitute infringement if they represent the heart of the work. AFP argues that the headline and the first sentence of a story constitute such an essence.

"They capture the reader's attention and describe what the rest of the article is about," the lawsuit said.

AP spokesman Jack Stokes came out in AFP's support, issuing a statement that AP believes "intellectual property laws protect news. That protection is important to ensure that organizations such as the AP can afford to collect news."

That said, facts cannot be copyrighted, and Google may have a claim on such citations if they are mostly based on facts not expression, said Fred von Lohmann, an attorney with the Electronic Frontier Foundation, a civil liberties group in San Francisco.

Von Lohmann said a ruling against Google also could harm the free exchange of ideas on blogs, which often cite and link to news stories.

The AFP case is not the only lawsuit challenging a search engine's practices. A Web site that sells nude photos of women has sued Google, accusing it of distributing links and passwords. Several companies also have sued Google and others over the use of trademarks as keywords for triggering a rival's ads.

"They are becoming multimedia centers rather than simply indexing information for consumers," said Ossola, who represents Geico Corp. in one such trademark case against Google. "The argument of convenience and benefits to consumers only goes so far when it runs into what are the legitimate rights" of intellectual property owners.



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