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Fair Use & Google News

Fair Use and Google News

In a recent decision by a Belgium court on February 13th, 2007, Google News was found to have violated copyright laws by publishing links to articles from Belgian newspapers. While it is possible that this decision could have an impact across Europe since copyright laws and notions of fair dealing are relatively uniform throughout the continent, it is unclear yet what impact, if any, this adverse verdict will have on Google News in the United States. However, courts should apply the fair use doctrine codified in 17 U.S.C. §107 and allow it to serve as an affirmative legal defense to copyright infringement for search engines whose automated software scours the internet to assemble an aggregate of news articles for public use. This is in accordance with the broader goals of United States copyright statutes of promoting the advancement of arts and sciences through the dissemination of information.

Google recently confronted a virtually identical case in Agence-France Press v. Google, where AFP, one of the world’s top news agencies, sued Google for copyright infringement under U.S. laws for reproducing its photographs, headlines, and story leads. The fair use doctrine provides a four factor test in assessing a defense to an alleged claim of infringement: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. This test properly applied to Agence-France Press v. Google as well as prevailing public policy concerns provides a sufficient legal basis to reject copyright infringement claims against search engines that aggregate news.

Purpose and Character of Use
Google News serves to provide a convenient one-stop source for users to view headlines and leads from over 4,500 English-language news sources. The website does not display the full text for any article but rather provides users with computer-generated links to the source of the article through the headline and lead or in some cases a thumbnail image of the article’s picture. In order to assess whether the purpose and character of Google News favors newspapers or Google, the commercial or lack thereof and transformative or consumptive nature of the website must be examined.

The Google News website does not display any advertisements nor is any revenue generated through the direct use of that service. Therefore, on the surface, the service does not appear to be commercial. However, it may be argued that while Google does not derive any direct financial benefit from the site, it is not precluded from indirect financial benefits in the form of increased traffic and greater brand recognition. Such remote benefits can hardly be seen as a form of commercial exploitation of the user’s copyrighted materials. Even if such use is considered commercial, courts have held that this alone does not defeat a fair use defense to copyright infringement action, particularly when it benefits the public in the dissemination of creative works.

The next part of the inquiry into the purpose and character of Google News’s use of newspaper articles is whether it is transformative or merely a consumptive use . Google’s service is a transformative use and satisfies the requirements described in American Geophysical Union, et al. v. Texaco, Inc. The court in Texaco defines a transformative use as “making some contribution of new intellectual value and thereby fostering the advancement of arts and sciences” American Geophysical Union, et al. v. Texaco, Inc, 60 F.3d 913, 923. Granted Google News reproduces headlines, leads, and in some cases, thumbnail images, the service also serves a productive function by categorizing articles, aggregating similar news under a single headline, and remembering a user’s interests to provide relevant recommendations. The totality of these services can hardly be dismissed as consumptive.

The purpose and character of use factor is clearly in Google’s favor. Even if the service is held to be commercial, that alone does not preclude a fair use defense.

Nature of Copyrighted Work
Courts have uniformly upheld a broader fair use doctrine in situations where the work in question is factual as opposed to fictional. In evaluating this factor, the public interest concern is particularly important as the law generally favors dissemination of factual information for the advancement of science and arts. The Supreme Court in Harper & Row, Publishers, Inc held this element to be in favor of the plaintiff because a copyright holder is entitled to the right of first publication. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 555. However, this is not the situation here because Google is only able to access and link to the article after it has been published online. Given the strong interest in promoting the dissemination of news as well as the fact that the information has already been published online by the news agency, courts would adopt a broader fair doctrine framework here and find this factor to be in favor of Google as well.

Amount and substantiality of the portion used in relation to work as a whole
This factor is rather ambiguous in this case and may even been seen as favoring AFP or other news agencies. In Harper & Row, the Supreme Court rejected the argument that an “infinitesimal taking” of quotes verbatim would provide a defense to infringing on a copyrighted work. Harper & Row, 471 U.S. at 566. Furthermore, courts have held that there is both a qualitative and quantitative component that must be assessed under this factor. While quantitatively this may not constitute a significant percentage of the article, qualitatively, the headlines and lead might arguably be the copyrighted work’s most important component. Although the quantitative component favors Google, the qualitative factor here may not and lead this factor to be weighted against them.

Effect of use upon the potential market for or value of copyrighted work
Courts have treated this element of the test to be the most important and rightfully so. The goal of copyright law is primarily to promote the free flow of information of artists to the general public. Artists would certainly be deterred in doing so if their work could be reproduced in a manner that prevents them from reaping the benefits of their efforts.

In this instance, in order to demonstrate that the alleged infringement by Google News has a negative impact on AFP’s market value for its services, AFP would need to establish that internet users are deterred from using their services and reading the full text of the article. However, it is doubtful that such a deterrent effect would exist, and it is likely that it would even encourage some users to read the entire article available through AFP. Furthermore, in other instances where such “snippets” of information was provided, it enhanced the marketability of the copyrighted product. While the true outcome of this hinges on whether this use supplants AFP’s normal market, it is likely that Google News expands AFP’s normal market by reaching out to users that might not normally reach AFP while simultaneously providing a public benefit.

Conclusion
Although copyright protection can be justified through moral justification or in terms of Locke’s labor theory, the monopoly privileges granted under patent, trademark, and copyright laws are not granted for the purpose of conferring a private benefit upon an individual or corporation but rather to motivate authors and inventors to allow public access to their products. Sony Corp. of America v. Universal City Studios, Inc. 464 U.S. 417, 429 (1984). Google News is a service that allows users to quickly and systematically find breaking and general news stories from across the globe and from multiple sources. Providing headlines, leads, and photos are a necessary part of the service, and in doing so, Google News has not taken more of the copyrighted material than is reasonably necessary. Although Google itself is a commercial entity, Google News does not display any advertisements or directly profit from the copyrighted works of others. In fact, in some sense, Google News serves as a research tool that would be in accordance with the aims of the fair use doctrine. The Supreme Court in Campbell v. Acuff-Rose Music, Inc. held that each factor in the four factor test must be analyzed together with the broader purpose of copyright law in mind. The majority of the four factor test for fair use, especially when seen in light of the aims of copyright law, favors extending the fair use doctrine to search engines providing services like Google News. Placing restrictions on such services would reduce the free flow of information and exclude valuable research tools from the public domain.

Posted by at February 18, 2007 11:19 AM in Commentary Posts