Answer: not under current copyright law!

But Google would like it to. In their Google Book Search, they’ve included text placing restrictions on use of the books which they’re making available. It’s not necessarily legal: but what is written can frequently be accepted as law by any user without knowledge of the laws surrounding copyright.

Philipp Lenssen is challenging this position. Good luck, Philip!

Regardless, the recent successful Belgian lawsuit has brought a number of interesting issues to mind.

The burden of copyright prevention is in no way a requirement to maintain copyright. No content producer is required to make use of tools to erect barriers against copyright infringement. In this case, where the basis of the lawsuit is primarily based on the presence of cached pages in Google’s index, the question which pops to my mind is:

What relevance should preventative measure play in copyright law?

The DMCA (which, granted, is in no way relevant to the Belgian courts) specifies that it is a contravention of copyright law to circumvent measures taken to protect copyright. This could mean that Google would be in violation of the DMCA if websites were to make use of features such as robots.txt, noarchive, or nocache and Google failed to acknowledge and respect those rules.

However, the bill says nothing which provides any protection for an automated service which has made provision to allow publishers to protect their materials when those publishers do not make use of the copy protection provisions.

It is trivial for content publishers to prevent Google for misusing their material. However, according to law, the onus lies fully on Google to avoid copyright infringement.

Bill Slawski, who very helpfully transcribed portions of the judgement, comments concerning the Court’s addressal of these issues:

Regardless of how the Court may have felt about those options, I think that they should have been addressed in some manner. The failure to do so makes it appear that they either weren’t provided information about those by their expert, or didn’t understand them, or may not have addressed those issues on purpose.

It would have been very much appreciated had the court ruling actually made any mention of the methods available to the newspapers to prevent this issue.

Google has also made their own public statement concerning the case which specifically mentions the ability publishers have to prevent the indexing of their content. One suspects that they would really like publishers to know that there are other means of accomplishing their goals than a lawsuit.

I wonder how much of the problem has to do with business model and communication. The goals of a business are very diverse: and the diverse business units may not always be working towards the same ideals. These Belgian newspapers sites may be a good example.

I can easily imagine that the web development team was gung ho about making certain their websites were well-indexed and represented in Google.be. The copyright protection team, on the other hand, noticed one day that their content was showing up on somebody else’s website! Not being technologically savvy, the legal team talked with upper management and a group of papers pressed a lawsuit. The teams, each protecting and supporting their company in their own ways, may have acted literally in opposition.

This is an entirely hypothetical scenario, of course – I don’t have any kind of inside track to know what actually went on in the development of this lawsuit. Nonetheless, I can’t help but be curious just how these publishing companies perceive the value of their website presences.

Actually, it’s a bit more complex than this. Reading between the lines, I believe that what’s going on is that these publishers want to allow search engines to crawl and index their content, but NOT allow search engines to make use of snippets of that content or aggregate the information.

Kind of a situation of wanting to have their cake and eat it too, as I see it.

In addition, the article states:

In one example of how ACAP would work, a newspaper publisher could grant search engines permission to index its site, but specify that only select ones display articles for a limited time after paying a royalty.

Although this is a poorly written sentence, it appears to say that this program would allow publishers to control what search engines were allowed to access their content when, in addition to requiring royalties be paid by those search engines.

Andy Beal describes this as publishers building a new robots.txt file, but I think there’s really a bit more to it. The publishers still see that search engines are a great way to get users to their information. They don’t want their content removed, they simply want more control over how it’s used.

The article also says:

What is required is a standardized way of describing the permissions which apply to a Web site or Web page so that it can be decoded by a dumb machine without the help of an expensive lawyer.

A robots.txt file does meet this description. However, a robots.txt file is purely a binary decision maker: either you can come in, or you can’t. This project, I suspect, is designed to build a more complex permissions system, allowing robots to visit at some times but not others, to view articles provided certain criteria are met, etc. None of this couldn’t be done by combining a robots.txt file with some sort of server-side decision making, but why not centralize the logic?

This isn’t to say that I think it’s a good idea. I’m pretty confident that there are much simpler ways to accomplish their goals – starting with effective monetization of their own sites. But it has to be acknowledged that the publishing industry has been undergoing a groundswell of change over the last decade. Access to information has changed radically during this time, and more traditional publishing companies are simply trying to keep their business models alive.

Or is it just bad decision making?

In this particular case, Ms. Bradley of Brava Corp. claims that her business relationship with Google (as a brief participant in the AdSense program) caused her irreparable harm by damaging her reputation. Now, it’s rather unclear exactly who caused her reputation harm. Did Google publicize the fact that Ms. Bradley had violated their terms of service? No, she did that herself by filing this suit. Her lawsuit is definitely a little short on merit.

It seems unlikely that any lawyer would advise Ms. Bradley to pursue a suit like this after considering her statement and reading the Google terms of service. Fifteen minutes should be all it would take to determine that the suit is not likely to be successful. So, one is inclined to conclude that the suit has other goals.

Let’s consider publicity. From a search perspective, this lawsuit has significantly increased the appearances of her corporation name in web press. It’s also created a decent number of additional links in to her site. But what’s the context of these links? Are they relevant to her business? Are they positive recommendations of her company or services? Not exactly. Nonetheless, when a site with an Alexa 3-month average putting them at traffic rank 2,317,997 has a traffic rank today at 3,808 – there’s an obvious impact.

What good is this likely to do. It’s a lot of publicity. It’s a lot of people visiting her site – will most of them think her suit is frivolous? Sure. Will some of them think Google is an evil empire which must be destroyed? Yep. Ultimately, an increase in visibility of this level can do good.

But…it’s probably not worth it. A pure spike in traffic is only going to accomplish so much. And since the site isn’t monetized in any way to benefit from the brief traffic spike, Brava Corp. will be dependent on gaining additional customers from this experience.

So, what does Brava Corp. offer? Management consulting, business tech consulting, corporate psychology services, and a variety of other vaguely-defined corporate services. It’s not clear to me that there are a lot of corporations who would hire a company which has recently demonstrated such a poor sense for public relations.

So what’s my point here? Consider carefully before pursuing a lawsuit. In addition to the standard expenses of the legal system, you may want to consider the publicity you’ll receive after filing. From a publicity perspective, it may not matter specifically whether you actually win your suit – however, it probably matters more that you be able to demonstrate a real understanding of the issues you’re arguing. A suit which is transparently frivolous will have minimal benefits to your public image, where a suit which has merit can provide publicity benefits without also damaging your reputation.

The claim is, in my opinion, ludicrous. The idea that a search engine has a specific obligation to maintain a website’s position in its results is simply nonsense. The fundamental claims, including that Google infringed upon their freedom of speech and that they behaved in a monopolistic manner have little merit.

However, this post is not about that lawsuit. This is about a second lawsuit against Google on rankings. The fact that there has now been more than one lawsuit on this subject makes me eager to have a meaningful precedent laid down in court. Mark Roberts, the filer of the latest suit, voluntarily dismissed his own
complaint when threatened with an anti-SLAPP motion.

SLAPP(acronym)

A strategic lawsuit against public participation is a form of litigation filed by a large corporation or in some cases, an individual plaintiff to intimidate and silence a less powerful critic by so severely burdening them with the cost of a legal defense that they abandon their criticism. The acronym was coined in the 1980s by University of Colorado professors Penelope Canan and George W. Pring.

anti-SLAPP

A motion in defense of the right to freedom of speech

The Kinderstart case is continuing, however, and I can only hope that the judgement rendered is NOT in the favor of Kinderstart. If search engines become liable to the companies listed in their indexes to provide constant search results the entire system of internet search would break down. What search engine would attempt to index the entire internet if this simply meant they were liable to a lawsuit every time somebody’s rankings dropped?