Google News finds more trouble in Europe

Google is facing mounting protests from newspaper publishers in Europe, the impact of which could ultimately affect the amount of content available to end users through search engines.

The company is due to appear in court on Friday morning to do battle with the Belgian press, which filed a lawsuit earlier this year accusing Google of copyright infringement for the way it posts headlines and snippets of their news stories on Google News.

Meanwhile, in the past two weeks trouble has also stirred up elsewhere. The company was forced to put on hold the launch of its Google News Web site in Denmark last week after newspapers there demanded a system that would allow them to "opt in" to Google's service, rather than having their content trawled automatically, said Holger Rosendal, head of the legal department at the Danish Newspaper Publishers Association.

And a Norwegian media group has written to the search giant, objecting to the way that Google posts thumbnails of its members' news photos. "According to Norwegian copyright law, you are not allowed to use photos without permission from the rights holder, so that's the big issue here," said Pernelle Borset, associate director of the Norweigan Media Businesses' Association.

The protests highlight mounting concern among some publishers that Google has gone beyond a simple search service to become a powerful media company that profits from the content of others. Publishers of news, books and other content types have filed lawsuits, often charging copyright infringement, to force Google to seek permission before using their work and even provide them with compensation.

Google responds that it acts within the law because it posts only snippets of publishers' content, and because the publishers can opt out easily. It notes that it drives traffic to publishers' Web sites, since it links to their publications, and it can help publicize works that might not otherwise be found.

Moreover, it says, if search engines were forced to get permission from every site they indexed, search services would not be able to operate at all.

"If content isn't indexed, it can't be searched. And if it can't be searched, how can it be found?" asked David Eun, Google vice president for content partnerships, in a Google blog post. "Imagine a library with no index of titles or subjects of the books on its shelves, or no catalogue of the authors who wrote them."

But that, critics say, is the point. Google is not a public service like a library, it is a profit-seeking company. Google may not "aggressively monetize" Google News with advertisements, but the site attracts visitors to Google, and visitors mean money.

"The exceptions (for fair use) don't really cover what is in effect a commercial service, and that's where they are vulnerable," said Laurence Kaye, a lawyer in the U.K. who is advising the newspaper industry on copyright issues.

Google isn't the only company targeted. Copiepresse, the group representing Belgian newspapers, also sent a cease and desist letter to Microsoft Corp.'s MSN division, which promptly removed the Belgian newspapers from its Web site rather than become embroiled in a lawsuit. Copiepresse has said that it may sue others.

The outcomes of the various lawsuits, also brought in the U.S. by Agence France-Press, the Authors Guild and others, will shape how Google and other search engines can index and display copyright material on their Web sites. For users, they will determine whether search engines continue to give them easy access to such a wide variety of content.

Google lost an initial ruling against Copiepresse in September and was forced to remove the newspapers' content from its Belgian search site and from Google News. Google was not present at the hearing, however, apparently because of an administrative error on Google's part. On Friday -- assuming it shows up -- it will defend itself for the first time.

The outcome could affect more than Google News. Copiepresse argues that by indexing and caching its members' content, Google is effectively making copies of the works for a commercial purpose, which it says is a copyright violation. It also objects to Google using the material without first asking permission.

Those arguments could be applied to other types of content. Search engines index and cache masses of copyright work on the Web without first asking permission. If the Court of First Instance in Brussels upholds its initial judgment, it could make it difficult for search engines in Belgium to operate at all.

"The ruling right now means that search engines can't operate in Belgium, because you don't have the right to index copyright pages without explicit permission," said Danny Sullivan, editor in chief of SearchEngineWatch.com.

A favorable ruling for Copiepresse could inspire other copyright holders to seek redress and potentially influence how other European countries apply copyright law to search engines. A decision is not expected for some weeks, and Google has also filed an appeal.

Google declined to comment on the possible ramifications of the case, but it acknowledged its significance in a posting to the Google blog: "We do feel that this case raises important and complex issues. It goes to the heart of how search engines work," wrote Rachel Whetstone, Google's director of European corporate communications and public affairs.

Europe does not have a blanket "fair use" law as the U.S. does, but organizations are permitted to use content in a limited way without prior permission. Courts typically consider whether the use of the copyright work is commercial, how much of it is used, and what effect the use may have on its value.

It was unclear whether other newspapers will file similar lawsuits. Many -- probably most -- go out of their way to be listed on Google News because of the traffic it drives to their Web sites.

Google News is a "powerful traffic generator," said Rusty Coats, general manager of TBO.com, the Web site of Florida's Tampa Tribune. The paper gets about 15 percent of its traffic from search engines, he said, although that can jump to 50 percent when there is a hurricane in the area.

"The fact that (Google) also gains from increased traffic I see as a kind of levy. Rebelling against that cuts my own throat," Coats said. "Nothing is 100 percent positive, but (Google) is not evil, either."

Sullivan, at SearchEngineWatch, said the Belgian papers were able to "band together and force Google's hand" because they operate in a small market. Such action would be more difficult in a larger market, he said, such as the U.S.

He criticized the action by Copiepresse, saying it could have opted out of Google's search but instead chose to litigate. "The intention seems to be that they want to be listed in Google, and they want them to share a portion of the profits."

But Angela Mills Wade, executive director of the European Publishers Council, said there is wide sympathy in the industry for Copiepresse. "There's a huge consensus among newspapers that the current situation is not sustainable," she said. While some papers will opt for lawsuits, she said, many favor a technology solution that will give them more control.

EPC is helping develop a technology called the Automated Content Access Protocol (ACAP), an "opt in" system that will give newspapers more control over how their content is used. Google has offered to join the ACAP initiative but wants the protocol to be based on robots.txts -- a technology widely used by Web publishers to stop their sites from being indexed by search engines -- and not be an entirely new technology, Whetstone said.

Meanwhile, it's clear that Google has to better educate publishers. "Clearly, newspapers are upset, but they also have a lot of mistaken assumptions," Sullivan said. For example, Google signed a deal to pay the Associated Press for stories. Other newspapers have been irritated by what appears to be special treatment, Sullivan said. In fact, Google says it plans to use the AP content in a way that goes "beyond the limited uses permitted by copyright laws," possibly for a new service, although it hasn't said how.

Other publishers think closer partnerships with search engines could be mutually beneficial. Just this week, several big newspaper chains in the U.S. announced a deal to post classified advertisements and other content on Yahoo Web sites. The goal is to drive traffic to both Yahoo and the newspapers.

Google is still primarily a technology company, and technology is something that newspapers are sometimes "horrendously bad at," the Tampa Tribune's Coats said. That opens the door to partnerships, in which publishers take advantage of Google's advertisers and open programming interfaces, for example, while Google makes more creative use of their content using technologies such as RSS feeds, he said.

In the meantime, Google may simply have to exclude newspapers and other content providers that it cannot come to terms with, said Andrew Girdwood, head of technical search at BigMouthMedia, a U.K. search optimization company.

"Their stated objective is to index all of the world's information," he said. "But there's not really a newspaper that the world couldn't live without."

There may, however, be whole countries that Google would rather not live without.