Although Google has been generally successful to date in defending against copyright claims in the United States, it has had a more mixed track record in Europe. Recently, Google scored a victory in France in an infringement suit over Google’s linking to music file sharing sites, but suffered a setback in Belgium with respect to its links to and use of online news content.
In a May 3, 2011 judgment, Syndicat National de l’Edition Phonographique v. Google France and Google Inc., Paris Court of Appeal, Arret du 3 mai 2011, no. 10/19845, the Paris Court of Appeal ruled that Google did not breach copyright law by providing links to websites that allow the illegal downloading and sharing of music in its search results. The French association that protects the rights of the French recording industry, the Syndicate National de l’Edition Phonographique (“SNEP”), brought the case against Google in April 2010, arguing that Google should remove such websites from its Autocomplete and Instant search services, as well as from final search results. SNEP presented a list of search terms that it argued should be filtered by Google, including the names of websites: “Torrent,” “RapidShare” and “MegaUpload.” SNEP’s argument was based on Article L336-2 of the French intellectual property code, which states that the high court has the power to take “all appropriate measures to prevent or halt” copyright infringements “caused by the contents of a communication service to the public online.” The Paris Tribunal de Grande Instance rejected the case in September 2010, ordering SNEP to pay Google EUR 5,000 (approximately USD 7,000) in costs.
Unsatisfied with this result, SNEP appealed to the Paris High Court, and added a list of artists and album names to the search terms to be filtered by Google. The Court of Appeal, however, upheld the earlier ruling, stating that, although Google provides links to file-sharing websites in its search results, copyright infringement will not automatically follow. For example, the court held that merely providing links and “suggesting” sites to be visited would not, standing alone, constitute copyright infringement under French law. Moreover, the court found that the files made available on the linked-to sites were not necessarily intended for illegal downloading. Further, the court noted that Google cannot be held responsible for individuals’ actions, and observed that the relief sought would be ineffective at stopping any copyright infringement that was occurring in connection with the linked-to sites. Nevertheless, despite its victory, Google has reportedly removed such terms from its search results without official notice or explanation.
In a separate Belgian case involving online newspaper content, Copiepresse v. Google, Brussels Court of Appeal, No. 2007/AR/1730, Google did not fare so well. On May 5, 2011, the Belgian Court of Appeal ruled in favor of Copiepresse, the Belgian association for the protection of French-language press copyright. The court upheld an earlier ruling that Google had infringed copyright by displaying links to online newspapers and snippets of articles on its Google News service, and ordered Google to remove such links and content from its search results. Copiepresse argued that the content at issue was only available to paying subscribers, and that Google was consequently causing newspapers to lose online subscriptions and advertising revenue by making content available for free. The association also argued that websites should not have to opt out of Google indexation. Google claimed that it qualifies for the “personal use” exemption under Belgian copyright law, but the court rejected this defense. Belgium’s “personal use” exemption is far narrower than the “fair use” privilege under U.S. law, which Google has successfully invoked in defending copyright suits commenced in U.S. courts. According to the judgment, Google faces a fine of EUR 25,000 (approximately USD 35,600) for every day it fails to comply with the court’s judgment. In multilingual Belgium, the ruling only applies to French-language newspapers.
For website operators based in the United States, the two EU Google cases serve as an important reminder that copyright laws are territorial. Online activities that are acceptable under one country’s copyright laws may nevertheless run afoul of another country’s copyright laws; and, because the Internet is necessarily global in nature, website operators need to pay attention to potential liability concerns arising under the laws of other countries.