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Germany: deep linking lunacy continues

New bill causes even more confusion

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Guest Editorial Mainpost, a publishing subsidiary of German group Verlagsruppe Holtzbrinck, is sueing NewsClub.de, a news headline aggregator, over deep linking. It claims that NewsClub.de infringes German copyright law by doing this. Here is NewsClub's argument.

The German Government has released a new draft law for regulating copyright in the information society, according to EU directive 2001/29/EG.

Among other things, the government clarifies the rights of reporting daily news in online media - but unfortunately, the controversial article 87b of German copyright law (Urhebergesetz, "UrhG") has not been changed. This is the German interpretation of the EU database directive.

The news search engine NewsClub.de has been accused of copyright infringement by a big German news publishing company. It argues that NewsClub violates article 87b of German copyright law by setting website links to their news articles, which they call a "database".

Currently, there are several parallel lawsuits in Europe against searching engines, such as Newsbooster.com, Paperboy.de and Net-Clipping.de.

NewsClub offers the web community a searching engine for news. Currently, it covers more than 100 different news sources. The user can search by news category and headline, and reach the publisher's web page containing the desired article, by web link, The user receives the page directly from the publisher's server, including all contents, advertising banners, etc. There is no in-frame linking, and each news headline includes the publisher's name.

In addition, the news web site gains accesses by the inflow of users that come from NewsClub. Apparently, the complaining publisher did not understand that this gives it a material benefit. It has filed a suit against NewsClub by using the exceptional rule in copyright for "databases".

Article 87a UrhG defines "databases" as follows:

"A database within the meaning of this Act is a collection of works, data or other independent elements arranged in a systematic or methodical way the elements of which are individually accessible either by electronic or by other means, and the obtaining, verification or presentation of which requires a qualitatively or quantitatively substantial investment."

In article 87b UrhG the rights of the Maker of the Database are defined:

"The maker of the database has the exclusive right to reproduce, to distribute and to communicate to the public the whole data base or a qualitatively or quantitatively substantial part thereof. The repeated or systematical reproduction, distribution or communication to the public of qualitatively and quantitatively insubstantial parts of the database shall be deemed as equivalent to the reproduction, distribution or communication of a qualitatively or quantitatively substantial part of the database provided that these acts run counter to a normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database."

So, the question is: Does pure linking (brokering) of internet websites violate copyright law? If that were true, searching engines like Google, NewsClub, Altavista etc. could have to shut down their servers.

The German government wants to clarify the situation with the introduction of two new articles of German copyright law - article 44a UrhG and 50 UrhG:

By article 44a, "temporary copying acts" such as performed by searching engines are to be allowed:

"Temporary copying acts which are non-permanent or accompanying and represent an integral and essential part of a technical process and whose solely purpose is

1. to provide a transmission in a net between third parties by an intermediary, or

2. to provide lawful use of a work or other subjects of protection, and which do not have commercial relevance by itself, are permitted." (non-official translation)

The proposal for the revised form of article 50 UrhG also seems to be advantageous for searching engines:

"For reporting current-events by radio or by other similar technical media, in news papers, magazines and other printings or by other data media which essentially accommodate daily interests - as well as in the movies - the reproduction, distribution or communication to the public of works that are perceivable in the course of these events is permitted in a scope, which is appropriate for the purpose." (non-official translation)

But it is yet unclear if legislation comes to the position that these both articles are valid for databases as well - because article 87b has not been modified!

If you follow the reasoning of Munich Upper Court (OLG München), which currently deals with the NewsClub case, that article 87b regulates searching engine activity regarding databases in a terminatory * way, one could assume that the legislator used different terms for one kind of redistribution, namely "copying".

Then, you have a forked term of copying, as searching engines, which quote and link information from databases, already perform "copying" when the quoted text is stored in memory. According to article 44a, such a temporary, technically needed storage should not be illegal.

The main point of contention in the lawsuit against NewsClub is this:

Is there a right to retrieve information from public sources? Can a searching engine enable the Internet user to find the location of desired information?

It is a matter of fact that the complainer's website is publicly accessible. They have not taken any precautions - either legally nor technically - to limit access by the public or by search engines.

Whoever posts a document on the Internet, without undertaking provisions such as password-secured access, or a clear "don't link me" statement
(robots.txt, Meta-Tags etc.), declares that he wants to be found by searching engines. Any other construction seems to be controversial and inconsistent. Not only the constitutionally but also the logically conformable interpretation leads us to the conclusion that article 87b is not really meant as a general linking ban.

It is reasonable for the content creator to state explicitly that it does not wish any linking to its documents. It is inappropriate to force search engine maintainers to establish from all publishers if there is a linking permission. This would bankrupt the search engines if the burden of proof was on their side.

It is even more astonishing that the news publisher is complaining, because NewsClub removed the company's web site from its crawler in 2000, as soon as it received notice to cease and desist.

The damage is incalculable for all Internet users, because the Internet is inoperable without searching engines.

The publisher's actual intention is clear:

It wants to herd its readers like cattle along all the advertising banners, from the starting page down to the page containing the news article, hoping that the user clicks on one of them. That way, the publishing company wants to refinance its website.

Metaphorically spoken, they want to forbid users to read their newspaper starting at the last page! The reader is also forbidden to skip pages - the newspaper should not be read too conveniently.

Search engines as NewsClub.de simply the access to information and increase the newspapers' attractiveness. In any case, NewsClub helps
increasing the page access rates - advertisers benefit from that, as they can reach a bigger audience.

In other words, if newspapers exclude search engines, they lose readers and advertising income - and the advertisers are fleeced of potential customers.

You can find more detailed information about the subject at http://www.newsclub.de/prozess, including documents, sentences, pleadings and links for further information.

There is also a discussion forum, in English and German. The German version of this article can be found here.

Christian Kohlschütter is the founder of NewsClub.de

Related Deep and Shallow Links

Search Engine Watch: Deep Linking Lunacy
Bechtold: The Link Controversy Page

*Terminatory - "the state where the act is consummated or where the last constituent element of the offence occurs has jurisdiction."

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