Is Google legal?

Since the ruling, Google has pulled the plug on the news sites in the lawsuit. They are not just missing from Google News Belgium, they have disappeared from Google’s main index and cache too.

“They have done it to punish us,” said Boribon, who didn’t want Google to go that far. “They have a bad attitude.” Yet Boribon went on to complain that some of her members’ content can still be accessed via Google News France. “They don’t apply the judgment fully so we will ask for the fine,” she said.

Boribon does not seem to think she is cutting off her nose to spite her face. “What I’m achieving now is getting all the information to my European colleagues so we will have other publishers taking part in the court case. Then maybe Google will change its mind. If they see this is not a Belgian case but a concern for all publishers all over the world, they will have to review their business model.”

Her hope is that if enough publishers withdraw their content, Google will have significantly less content to index – and that will force it to the negotiating table.

Copiepresse is using the law as leverage in a commercial argument: its content contributes to Google’s $10bn-a-year in revenue and newspapers want a cut. That argument should not focus on Google News because Google News does not display ads. It is only when newspapers’ pages appear in the results of the main search engine that Google serves the ads that fuel the $125 billion company.

Copiepresse told the court that Google damages the publishers’ ad revenue by bypassing their homepages. “We want search engines to send people to our homepage,” she said, explaining that only the homepage always carries ads.

Google says its practices are lawful. It acts as an intermediary that connects users to sites. Europe’s Copyright Directive and E-commerce Directive recognise the role of intermediaries and afford them special legal protection, including a special right for intermediaries to cache material. Confusingly, however, Google’s cache may not be what the lawmakers had in mind.

Internet service providers use caches to save bandwidth on delivering frequently-accessed web pages. Rather than deliver a live page, it is more efficient to deliver a cached copy to customers. The customer will never know the difference because the cached copy is updated when the live page changes.

The E-commerce Directive doesn’t distinguish internet service providers from search engine service providers. Instead it says “a service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service”. There are other conditions, including that “the provider does not modify the information” and that “the provider complies with conditions on access to the information”.

Google has explained the purpose of its cache before, when the function was challenged in a US court in January. Google listed three purposes for the Nevada District Court: it allows users to view pages that the user cannot access directly, perhaps because the destination site has gone down; it allows users to make comparisons between a live and cached web page; and it allows users to identify search query terms (which are highlighted wherever they appear in the cached page). Copiepresse might argue that these purposes go too far beyond the Directive’s “sole purpose of making more efficient the information’s onward transmission to other recipients of the service”.

Even the legality of the primary search function of a search engine is open to question. The Directive’s condition that a provider “does not modify the information” is arguably breached as soon as a search engine breaks a page into tiny elements for analysis and cross-referencing in its gigantic index. That argument was not raised in court but would cut to the heart of almost any search engine’s operation.

Google won the Nevada case. Its opponent, a lawyer called Blake Field, had “decided to manufacture a claim for copyright infringement against Google in the hopes of making money from Google’s standard practice,” according to Judge Robert Jones. Field knew how the system worked and he placed copyrighted articles on his site, waiting for Google to find and cache his work. When it did, he sued.

The court endorsed Google’s opt-out approach: because Field knew about the robots protocol and the NOARCHIVE command, Field’s conduct was interpreted by Judge Jones “as the grant of a licence to Google for that use.”

Google could use the implied licence argument when the Copiepresse case returns to court. The robot exclusion standard has been around for 12 years; Google could argue acquiescence.

Field also argued that Google’s cache was not “intermediate and temporary storage”, as required by a US law. Judge Jones said that Google’s caching for approximately 14–20 days at a time is temporary. That may or may not influence a European court if it has to decide the same issue: the wording is common to laws on both sides of the Atlantic.

If the legality of the cache is uncertain, the legality of Google News is no clearer. The Belgian court heard that it is an information portal , not a search engine. It uses 4,500 English-language news sources and a few hundred Belgian sources, in many cases without prior permission. Google says that’s okay.