Intellectual Property, Search Engines, and the Law

September 25, 2006

Topics: Google.

It seems that copyright infringement is a chronic complaint against search engines – and, to be honest, particularly against Google. At least from a news perspective, Google is the only search engine ever suspected of infringing copyright despite the minor detail that their engine does behave more or less the same way as any other.

Regardless, the recent successful Belgian lawsuit has brought a number of interesting issues to mind.

The burden of copyright prevention is in no way a requirement to maintain copyright. No content producer is required to make use of tools to erect barriers against copyright infringement. In this case, where the basis of the lawsuit is primarily based on the presence of cached pages in Google’s index, the question which pops to my mind is:

What relevance should preventative measure play in copyright law?

The DMCA (which, granted, is in no way relevant to the Belgian courts) specifies that it is a contravention of copyright law to circumvent measures taken to protect copyright. This could mean that Google would be in violation of the DMCA if websites were to make use of features such as robots.txt, noarchive, or nocache and Google failed to acknowledge and respect those rules.

However, the bill says nothing which provides any protection for an automated service which has made provision to allow publishers to protect their materials when those publishers do not make use of the copy protection provisions.

It is trivial for content publishers to prevent Google for misusing their material. However, according to law, the onus lies fully on Google to avoid copyright infringement.

Bill Slawski, who very helpfully transcribed portions of the judgement, comments concerning the Court’s addressal of these issues:

Regardless of how the Court may have felt about those options, I think that they should have been addressed in some manner. The failure to do so makes it appear that they either weren’t provided information about those by their expert, or didn’t understand them, or may not have addressed those issues on purpose.

It would have been very much appreciated had the court ruling actually made any mention of the methods available to the newspapers to prevent this issue.

Google has also made their own public statement concerning the case which specifically mentions the ability publishers have to prevent the indexing of their content. One suspects that they would really like publishers to know that there are other means of accomplishing their goals than a lawsuit.

I wonder how much of the problem has to do with business model and communication. The goals of a business are very diverse: and the diverse business units may not always be working towards the same ideals. These Belgian newspapers sites may be a good example.

I can easily imagine that the web development team was gung ho about making certain their websites were well-indexed and represented in Google.be. The copyright protection team, on the other hand, noticed one day that their content was showing up on somebody else’s website! Not being technologically savvy, the legal team talked with upper management and a group of papers pressed a lawsuit. The teams, each protecting and supporting their company in their own ways, may have acted literally in opposition.

This is an entirely hypothetical scenario, of course – I don’t have any kind of inside track to know what actually went on in the development of this lawsuit. Nonetheless, I can’t help but be curious just how these publishing companies perceive the value of their website presences.

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3 Comments to “Intellectual Property, Search Engines, and the Law”

  1. @schulzter:

    Heh. That would be funny…

    @mniess:

    Well, it’s pretty unlikely that the courts would reverse their decision on the basis that Google acted against the entire country…that would be kind of like giving into to a tantrum.

    And there are other search engines in the sea…

    Thanks for your comments!

  2. Hey, this was great, I have a much better understand now. Wouldn’t it be funny if Google sent some developers over the newspapers and told them “we’re here to implement the judgement, we need to put a robots.txt file, etc. on your webserver, we have a court order.”

  3. Thank god Google will not behave like me. I’d be stubborn like a little baby and say ‘Okay – there is no more legal certainty for me in Belgium anymore – lets get outa’ here.’ and block all Belgium IPs from access to Google’s search services.

    All of this in the hopes that the court would recognize their stupidity and reverse their decision. But that’s not how big companys work, is it? 😉