Google Cache & Google News Not Allowed in Belgium

Andrew Goodman

09/19/2006 07:47 pm

Hi, Chris Boggs solicited my comment for a radio show tonight, and asked me to repost it here. It's quite lengthy - but here goes! See below for the extended commentary. Here is the brief version. In doing a bit more research I was unable to discover the extent of the cache-related complaint and how much of the complaint was related to the snippets, thumbnails, and deep linking. It seems at this stage like a "process" that has some technological and negotiable procedural [routine] solutions has been painted in black and white by the complainant due to technological naivete, and the court hasn't marshaled enough resources to fully weigh different aspects of the complaint. The judgment reads like a big middle finger to the "upstart" American company. My legal guru of choice, Eric Goldman, has not yet written on this. So, I'm going mostly on a guess, but I do believe that Google is on less solid legal ground when it comes to caching, depending on the length and extent of caching, than it is with links, snippets, and thumbnails. Don't get me wrong, I'm not that comfortable with the legality of caching as Google practises it today. That being said, the Belgian court's action feels rather medieval, including the shaming in the public square (Google having to post the judgment without comment on its .be homepage, etc.) aspect that Google is "ordered" to engage in. So it's fair that courts can not only order certain remedies, but also humiliate defendants, or the defendant owes 1 million Euro per day? This court appears to operate on a different plane of reality and maintains a different degree of respect for the needs of business in a fast-changing environment than many courts do in other places. You've heard of "activist" judges. Unfortunately, on complex technological issues, many judges appear to be "reactionary," failing to gain enough knowledge of the nuances of cases or the partial, sane remedies which may already be available to complainants. My extended commentary: Underlying all of this is ongoing debates around what's legal online in terms of intellectual property and others' use or references to it. Recall that at one point Ticketmaster, for example, wanted to forbid "deep linking" to internal pages on its site - apparently misunderstanding the very structure of the World Wide Web. Some of these matters are simply not matters of interpretation - if the complainants got their way, the entire Internet would be in jeopardy. In my opinion the Belgian decision comes close to that point. Small snippets and links to articles are not much more than aids to search and navigation. As far as I know, users clicking on news links from Google News get taken to the source site! "Caching" is a separate issue and affects Google Search more than Google news. By allowing Google's bot to spider our site, do we give Google the right to archive our pages? What about the Wayback machine? These are tremendously useful tools, but this is clearly more of a violation of my rights as a content creator than the snippets are. In the end, legal debates on such matters tend to saw off, with partial settlements and accommodations - such as Google agreeing to allow a request procedure to have your content removed. Essentially, Google will be forced in this case to allow the opt-out option, but it is wise to continue to push the legal envelope on the snippet issue, because the snippet doesn't go much beyond a link and it would threaten Google's whole business, and the quality of search, if it were disallowed. Unfortunately, the fine in this case is so large that Google will do its envelope-pushing in other countries. 1 million Euro a day over a relative misdemeanour. Wow. The international business community doesn't forget stuff like that. "Remind me not to do business in Belgium!" Now the question should turn to the wisdom of challenging Google's right to help you distribute your content! Google is far from the only distributor of this kind, and while their "use" or "abuse" of others' intellectual property may greatly enrich Google, that doesn't make it wise to drop out. Newspapers deciding en masse that they would rather not get seen by searchers would seem unwise -- shooting themselves in the foot would be an understatement. Look, let's face it -- if an Internet property gets large enough, they become a primary source that the consumer cannot avoid coming into contact with. Yes, that's monopolistic and guess what, monopolistic power is what all media, new and old, have always tried to fight for. Suing Google for pointing users to your content is almost like waving the white flag, proving they have far more market power than you and the only way to stop them from being much more profitable than you is through legislation or litigation. The blogosphere and alternative media are already gaining credibility at the expense of old media. If old media opt out of online exposure through news search engines, that trend will accelerate. Google isn't just some upstart - they are now, in fact, much bigger than you unless you're .... hmm, forget the qualification ... they are much bigger than you. It makes business sense to come to terms with them to further your distribution, unless Google is in such flagrant violation of copyright law in so many countries that they need to be sent a message. I don't believe this is the case here, so the Belgian court's action seems spiteful and over the top, a question of sticking it to a successful U.S. company for who knows what reason... nationalism? distinctiveness? spite? in the pockets of old media? I don't know. Cheers, Andrew www.traffick.com