I certainly hope the court will cancel the injunction in Belgium. It might rub off on the danish news papers too as they are also completely in the dark as to how the web works:
No Google News in Denmark [webmasterworld.com]
Personally I can't fanthom how the news papers can be so far from what's happening on the web today. I have to bite my lip not to post anything that eerrrm might be over top regarding this issue. It's unbelievable imo.
The generally accepted way of dealing with copyright is to obtain permission FIRST.
Moreover when Google operates outside the US the wide "fair use" rules don't apply.
Newspaper publishers try to sell their content directly or indirectly and have in general enough of a name not to need google promoting them. Having Google copy it without permission apparently isn't in their best interest.
That the papers could stop the copy using e.g. pragma's or robots.txt or even filtering on IP isn't the point. The lack of permission is the point.
|completely in the dark as to how the web works |
I'd say that Google is in the dark as to how laws work.
just for your information :
the belgian court in general is
- 19-th century-organised
- still works with floppy's IF they use a computer at all
- never in a hurry
and all this in the second power if it concerns the french speaking part of belgium.
So don't be surprised if it will be 2008.
Well, they said not BEFORE 2007...2020 is also not before 2007 ;-)
I'm endlessly amazed by the number of people who insist that search engine's practice of copying data and then displaying snippets is wrong/should be made illegal/is illegal.
The internet as we know it would not exist if search engines didn't do this. That, at least, is one thing upon which there can be no reasonable debate.
|The generally accepted way of dealing with copyright is to obtain permission FIRST. |
Only if the work is sufficient to be copyrighted AND the use is not covered under fair use or equivalent.
|Moreover when Google operates outside the US the wide "fair use" rules don't apply. |
Not so. Google the company, and the servers that do the actual copying are in the US. Copyright law is national and jurisdiction is where the copying occurs.
Unfortunately for Google, they have taken some actions that give the Belgian court some jurisdiction over their subsidiary, but probably not enough to have a major impact on Google.
Does Google have a datacenter in Belgium? If not, it isn't even a distribution point.
|I'd say that Google is in the dark as to how laws work. |
My guess is they know how they work a whole lot better than most commenters on webmaster world.
Google made agreement with Sofam and Scam, two Walloon (French speaking Belgians) associations representing newspaper journalists and photographers, about the use of their articles and photo's. No details about the agreement where given. (src. De Standaard 27 nov 2006 - Flemish newspaper)
|Google the company, and the servers that do the actual copying are in the US. Copyright law is national and jurisdiction is where the copying occurs. |
Google has to obey the laws of the country in which it is delivering services - that is, after all, the reason that they and others have kowtowed to Chinese requirements, is it not? I seem to vaguely recall that Google also blocks results in France that promote Naziism in order to comply with local laws there (but I could be mistaken).
If Belgium courts rule that Google is breaching Belgian copyright laws then Google will have two choices, stop providing services in Belgium or start obeying Belgian laws.
|Google has to obey the laws of the country in which it is delivering services |
No they don't. They have to comply with the laws of countries that have jurisdiction over them. A country does not have jurisdiction over you just because you serve content to that country.
Copyright law is national law that concerns the location of the actual copying and distribution. It also concerns importation, but it is not the distributor that gets in trouble there, it is the importer (the end user when it comes to web pages)
In the case of China, they agreed so that they could gain access, not because the laws of China had jurisdiction over their actions.
I believe the French case was Yahoo's French auction site, not Google's SERPs. There was a French trademark case against Google AdSense in France serving competitor's ads when someone searched on Vitton. Google has an AdSense sales unit in France, so French courts have jurisdiction.
They also have some jurisdiction over .fr domains, which is the *only* jurisdiction that Belgium has over Google, as far as I can see.
|If Belgium courts rule that Google is breaching Belgian copyright laws then Google will have two choices, stop providing services in Belgium or start obeying Belgian laws. |
Nope, the only thing they have any control over with Google Corporate (as far as I can tell) is the google.be domain name. That is probably why Google didn't pay too much attention to the suit from the start.
I doubt that Google would want to give up google.be, but if the courts try and go too far, trying to control anything they do not have proper jurisdiction over, then the courts will see just how powerless they are. Google can just start serving results to belgium from their google.com address.
If anyone really thought the Belgian courts had any sort of power over Google in this case, why did they also file a copyright claim in the United States?
they might run into a problem if it was pushed under EU law ..as they have operations in other EU countries ..
Ebay's financial unit for Europe is based in Switzerland ..probably in an attempt to mitigate against this sort of thing ..allthough their country auctions are run from each country ..
[edited by: Leosghost at 11:31 pm (utc) on Nov. 27, 2006]
|No they don't. They have to comply with the laws of countries that have jurisdiction over them. A country does not have jurisdiction over you just because you serve content to that country. |
By all means, call me an idiot, but Google is a business that is out to make money like any other and it does so mostly by selling adverts. I could be wrong but I imagine that it both displays adverts in Belgium and also advertises Belgian products - THAT MEANS IT IS DOING BUSINESS IN BELGIUM AND LIKE IT OR NOT IF YOU DO BUSINESS IN A COUNTRY THEY HAVE JURISDICTION OVER YOU. THIS WAS THE VERY ESSENCE OF ARRESTS AND OTHER WARRANTS IN RELATION TO ONLINE GAMBLING THIS YEAR.
The US does not rule the world. US companies have to obey the rules too. In practice, Belgian courts might find it difficult to enforce any decision they take, but, in theory, Google execs could find themselves in contempt of court and, I presume, could be subject to international arrest warrants. It's hard to see that actually happening, but small countries don't like to be pushed around by multinationals.
|they might run into a problem if it was pushed under EU law ..as they have operations in other EU countries .. |
The last I heard, in the EU copyrights are still national. At the very least the case would have to be held where at least some portion of the supposed infringement occurred.
A book is is published in Germany by Party A, illegally copied in the UK by Party B, then imported to Spain by Party C. Party B could only be sued in the UK, because that is where the infringement happened. Party C might be subject to copyright or smuggling charges in Spain depending on what their laws are.
In other areas of EU law, you certainly might be correct, but it seems to me that the Brussels Convention would require that the suit go forward in the country of the defendant's domicile. It seems to me that would imply that it would have to be a country where Google Search is located. It certainly does not belong in the country that is the most convenient for the plaintiff.
Other EU countries might honor the judgment, but Google would almost certainly get the right to appeal the judgment in the country where it is being applied. Judges do not like other judges taking jurisdiction that is not rightfully theirs. It is almost certain to go to the ECJ for a jurisdictional ruling.
There are right places and wrong places to file court cases. Even if a "wrong court" is willing to hear your case and give you a favorable judgment, doesn't make it a judgment that you can actually do anything with.
In fact, a "wrong court" judgment can even get in your way when it comes to getting a judgment in a court with actual jurisdiction. When the case comes up in the United States, just watch how Google plays out the fact that the case was filed in another country as well. the reply memorandum should be quite a piece of work.
|Ebay's financial unit for Europe is based in Switzerland ..probably in an attempt to mitigate against this sort of thing ..allthough their country auctions are run from each country .. |
Yeah, that would be why they would choose their countries carefully. I would be willing to bet that each of those countries auction units are insulated from the main company and each other as well. There are too many difficulties related to what is legal where to have them all closely connected.
While auctions are a completely different creature than copyright, it does show a more obvious reason for separating jurisdiction. Imagine if someone in Germany could sue Ebay Argentina in German court for selling an item illegal in Germany but is absolutely legal in Argentina, just because the Ebay Argentina site was accessible from Germany.
|I could be wrong but I imagine that it both displays adverts in Belgium and also advertises Belgian products - THAT MEANS IT IS DOING BUSINESS IN BELGIUM |
Yes, you are wrong. They have to have an actual presence in the country. From everything that I have been able to find shows that they only have a subsidiary ad sales company in that country. Google, the company that owns all the hardware and does all the spidering and serves up the results, does not have a presence in that country.
The only assets that the court has jurisdiction over are a subsidiary sales company, and the google.be domain name. They can obviously come up with a ruling, but they are going to have a hard time enforcing it without Google's cooperation.
European laws allow for fair use too, book reviews often include snippets of an in-copyright text without having to get the permission of the author.
What gets me though are the idiotic rulings saying that you have to get permission before you LINK to a site. That's like saying you have to get permission before giving someone directions in the street.
I agree with BigDave from a factual standpoint.
From a "real" standpoint the whole thing is total nonsense, and Google knows it!
Billions are to be made while some slow-ass jurisdiction comes up with a ruling that will be challenged for years.
The moral of the story is break the law as long as it is profitable to do so! And any good corporate lawyer will advise as such!
Dave, with respect, I think you are using a somewhat narrow definition of "presence in the country" that is not really valid for the world of internet trading.
Essentially, it comes down to what can be enforced, and as the US has proven with online gambling, with or without jurisdiction, as a country, you can block the money and you can prosecute if you can get hold of the individuals concerned.
However, there is another way of looking at this. I rather doubt any high-ranking Google executive is going to come out and publicly state that Google is above the laws of the countries they trade in. Yet, if they ignore a Belgian court ruling on copyright that relates to Belgian-owned material, that is precisely the message they would be sending.
Setting aside the legal arguments, as I have said before, a simple technical solution exists with respect to caching/archiving - simply introduce a new http header that controls whether it is allowed or not. If Apache, etc, set this as default "yes" then the Google cache would not be broken by its introduction but the legal criterion of explicitly granting the right to cache/archive/display the material would be met. I presume this would meet with your approval.
Yeah, the US "proves" that with online gambling and Australia "proved" it with defamation. The difference is that those are not defined by treaty.
When the US feds tried that with copyright, claiming that the payment was processed in the US, therefore creating a "presence" the courts threw it out.
In the case of the EU, it is the treaty that is specific to the EU and the EU courts that have defined jurisdiction. Google's mistake was to not send representation to the court to raise that issue. The injunction was a default judgment.
The following message was cut out to new thread by engine. New thread at: goog/3171076.htm [webmasterworld.com]
8:47 pm on Nov. 28, 2006 (utc 0)
Dave, are you saying that, because an international treaty on copyright exists, a company in country A can violate the copyright of a company in country B provided that company A does not "have a presence" in country B? I am aware that there are some crazy laws out there, but that seems improbable to me.
Or, are you saying that a company in country A is bound solely by copyright laws in country A and can break the copyright laws of country B with impunity?
International treaties on copyright do exist, but so do national variations. For instance, in the UK, music copyright runs out after 50 years but I think it is 95 years in the US. (A legal case has been in the news in the UK this week.) Is it your contention that UK companies (that don't have a physical presence in the US) should be allowed to sell (or give away free) 51 year old music that belongs to American artists, to Americans without paying royalties simply because copyright is deemed to have expired in the UK? Unless I'm missing something, that seems to be a logical conclusion from your argument, but I rather doubt it would stand up in court.
No, I am saying that Copyright law applies in the country where the copying or distribution happens. That act gives the local courts jurisdiction.
None of that is happening in Belgium, so they do not have any jurisdiction based on where the action takes place. That is the first choice of forum for where to file a copyright case.
The second choice in forum is a court where the defendant id "domiciled" or in the case of a company has a presence, or more important in the case of a judgment, assets.
The last choice, and the one almost never upheld by the courts, is in the most convenient place for the plaintiff. Selecting this is specifically against the Brussels convention in the EU.
So the court has to have jurisdiction over the action (copyright infringement) which happened in the US or possibly in an other country with a datacenter. The act did not happen in Belgium.
Or the court has to have jurisdiction over the company (Google Corp) which would be any country with a datacenter or an engineering office. The most appropriate country as far as most courts would go on this, would be the primary country of operations (the United States).
The Belgian court does not have jurisdiction based on the action of copying, which happened in the United States, or distribution which happened in the countries with data centers. It has jurisdiction over the act of importing which was done by the users, not Google.
The court does not have jurisdiction based on Google residing in Belgium, because they do not reside there. They only have jurisdiction over a subsidiary and a domain name.
Let's look at it this way, a British car company sells cars in the United States through a subsidiary company that is incorporated in Delaware.
The company pays a developer to modify some open source software to meet their needs. Since it is open source the put it on their website for anyone in the world to download.
Bigredmond corp owns a software patent in the United States on a method used in that software. The UK does not recognize software patents.
Someone in California downloads and uses the software.
Bigredmond Corp sues the British manufacturer in the United States for violating its United States patent because the software somehow made it into the United States and their is a company in the United States with the same name as the UK company.
The court would tell them that they have to sue in the right place (the UK) or the right person (the person that downloaded and used the software in California)
If the programmer was a contractor in the United States, it would be different, because the infringement would have happened in the US. If they had given the software the the US subsidiary, there would be a case against the subsidiary, but they didn't do that either.
Where the action takes place is vitally important. If I drive 85 in Montana, I don't get a ticket in New Jersey because their speed limit is 65 and they don't approve of Montana's speed limits.
A country can place restrictions on what their subjects can do in other jurisdictions, but they don't generally put those same restrictions on non-subjects can do in other jurisdictions.
|International treaties on copyright do exist, but so do national variations. For instance, in the UK, music copyright runs out after 50 years but I think it is 95 years in the US. (A legal case has been in the news in the UK this week.) Is it your contention that UK companies (that don't have a physical presence in the US) should be allowed to sell (or give away free) 51 year old music that belongs to American artists, to Americans without paying royalties simply because copyright is deemed to have expired in the UK? |
Yes. That is the law. It is absolutely legal for a UK company to copy music when it goes out of copyright in their country. Early Elvis is legal to copy in the UK now. But Americans that buy that music and bring it into the country are violating American laws.
Just like buying pharmaceuticals without a prescription from a Mexican pharmacy is illegal for the person that placed the order, it is not illegal for the Mexican pharmacy because they are not breaking Mexican law.
|Unless I'm missing something, that seems to be a logical conclusion from your argument, but I rather doubt it would stand up in court. |
You aren't missing anything other than the "import" part of the argument. That is EXACTLY the way that it stands up in court, and has on a regular basis in almost all Berne countries.
Well, if that is the law then the law is wrong. You're saying that individuals that use Google to break copyright laws in Belgium can be prosecuted but Google cannot even if it is knowingly profiting from it.
If that really is the legal position then the law needs to be changed. If a developing country were to declare copyright to be void on music after two years, a company based there (and nowhere else) could make a fortune quite legally by selling music (by download) overseas. The only action that the record companies could take (if you are correct) would be to prosecute individual downloaders. (In the UK, a defence of "bought in good faith" would probably be sufficient.)
Are you certain that there is nothing in these laws and treaties that require copyright laws of other countries to be respected when distributing material in those countries (from abroad)? That's a mighty big oversight by someone! I suppose it could have been overlooked on the assumption that importing companies could be prosecuted but now that the internet is here, that is no longer always possible.