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Copiepresse's Complaint v. EU Commission Tossed Out
Monday, June 30 2008 @ 02:32 PM EDT

Do you remember Copiepresse, the Belgian association of newspapers that went after Google for linking to their members' articles in Google News? They tried to do something similar to -- get this -- the EU Commission, but they just got zonked. Their case was tossed out last Thursday by the Belgian Brussels Court of Seizures, and in a way that bodes well for Google, I'd say, not to mention for the Internet and those of us who like to use it. The last link is to an article in French, and others I'll show you are too, and it was Groklaw's Sean Daly who brought this news to my attention and helped me to understand what is happening.

It seems the EU Commission has a kind of news aggregator of its own, which it calls European Media Monitor, with several different services, and Copiepresse filed a lawsuit against the EU Commission for copyright infringement for linking to its members' Most Holy IP in the aggregation without asking for permission first.

Well, the Court of Seizures, which is a fine name for a court, threw out the Copiepresse complaint on jurisdictional grounds. Copiepresse says it won't appeal "for strategic reasons", but it will move the case to the civil court. I don't know how much that will help them. The Court of Seizures was persuaded by the EU Commission that its news search engine services are perfectly legal.

It appears that although there is no Fair Use concept in Europe's copyright law, there are exceptions, situations where you don't have to ask the author's permission to use his or her work, and the EU Commission's use, it argued, fits into one of those exceptions, namely press commentary.

Here's the EU Commission's description of its search and aggregation service:

The European Commission's Joint Research Centre (JRC) has developed a number of news aggregation and analysis systems to support EU institutions and Member State organisations. The three Web Portals NewsBrief, NewsExplorer and MedISys are publicly accessible and attract up to 1.2 Million hits per day. The system was initially developed as an in-house application for the European Commission’s Directorate General Communication (DG COMM) to replace their tedious and expensive manual media monitoring and press cutting services. Since then, EMM has become a crucial instrument in the daily work of almost all Commission services and many other public organisations. EMM is the news gathering engine behind a number of applications. EMM monitors the ‘live’ web, i.e. the part of the web that has ever changing content, such as news sites, discussion sites and publications. All applications are developed, maintained and run by the JRC.

High crimes indeed. They wrote software that does what humans had to do by hand with scissors and scrapbooks before. But they took it to a new level, by aggregating news in many languages, showing snips side by side, in that way presenting a kind of overview or summary of the coverage of each story. Here's part of the description of News Explorer, for example:

The perspective on individual issues often differs from one country to the next. Seeing related news coming from different countries or written in different languages next to each other can be very informative. Using unique technology, NewsExplorer automatically detects related news clusters across languages and allows users - with one simple click - to access foreign language news about the same subject or event....

Each day’s news clusters are automatically linked to the related news of previous days and months. Timelines show developments over time and allow users to jump to the origin or to peaks of each story. Separate sections displaying news stories that started in the last week or in the last month allow users to get up to date with recent developments.

It sounds incredibly useful, particularly for governments. But what is the difference between that and Google News? No. Really. Copiepresse could, of course, have offered something just as useful, I'd think, in its locale. It's an association of French and some German language daily newspapers in Belgium, after all, so they could be as creative as you please with so much to work with. But no. They'd rather sue the EU Commission. What likely bothers Copiepresse, actually, is the 1.2 million hits a day. I think they must add up allegedly lost revenue like the music industry does.

This appears to be a sister court to the one that reaffirmed the Copiepresse win over Google. That first order [PDF; English text] was affirmed by the same court, which found that Google News lacked commentary,1 so it didn't fit into the exception. That seems to me to be a fixable issue, even if it were viewed as true. No? Too simple? In any case, on appeal it would seem that the court can certainly reverse that part of the ruling, since the very aggregation of so many article about the same news event is a kind of commentary, according to my understanding of the EU Commission's aggregator. For example, here's today's News cluster by the EU's service, which is done by software, with no human commentary that I can find. I see no difference between it and what Google News does, from the standpoint of the exception.

This is probably a good place to tell you that according to the Google News Blog, Google is experimenting for the next few weeks with Google News:

Over the course of the next few weeks, you may notice a few changes to Google News... or maybe not. You see, we'll be running some experiments on the look and feel of our site, based on an accumulation of user research and feedback, as well as the evolving state of online journalism. They'll only be visible to a small number of random Google News readers. (In case you're wondering, experiments are selected randomly, so we can't give you any advice for how to get in!)

Suggestion box: Try out some explicit commentary, why don't you? Just saying. Actually, in my view, they already have it, with the feature where persons mentioned in news articles can respond to what is written about them. That surely is commentary already. In any case, I think it's now clear what makes a search engine legal in Europe, and that's handy to know.

The Court of First Instance in Brussels has a civil court and the Court of Seizures, among other sections, and as best as I can make out, the civil court is for parties to sue each other, and the Court of Seizures is where you go if you want a governmental authority to act on your behalf. 'Saisies', or seizures, is a way of obtaining damages, and the Belgian legal system offers a method "unilateral procedure" which allows you to drop from the sky and prevent destruction of evidence or dissipation of assets, etc. And as best as Sean and I can make out, there is the hint of jurisdiction shopping in this story.

What is a unilateral procedure? Here's the explanation:

On introduit une requête unilatérale au moment où une personne se présente au tribunal dans le but d'obtenir une ordonnance suite à laquelle une tierce personne doit exécuter ou subir une action y décidée, sans que cette tierce personne peut être au courant des mesures demandées (exemple: les demandes de constatation d'un adultère, des requêtes en saisies,...). Ceci empêche ce tiers de prendre des mesures qui provoquerait la perte des avantages de la partie demanderesse dans cette procédure. On trouve différentes natures d'affaires qui seront traitées dans différents greffes. Pour la plupart des requêtes une signature d'un avocat est exigée. Les diverses possibilités sont décrites sous les rubriques concernant les divers greffes dans l'actuel site Web.

Sean translates for us:

A unilateral procedure is filed when a person comes to the court with the goal of obtaining a judgement following which a third party must execute or be subjected to an action decided there, without the third party knowing what measures are requested (examples: requests for finding of adultery, requests for seizures,...). This blocks the third party from taking measures which would provoke the loss of advantages of the complaining party in this procedure. Different types of affairs are treated by different courts. For the majority of requests, the signature of an attorney is required. The functionalities of the Courts are described elsewhere on this website.

When Copiepresse showed up in the Court of Seizures by itself, telling its tale of woe, the court assigned the same computer expert assigned in the Google case, Luc Golvers, to write up a report. Just like in the Google litigation, his report was utterly favorable to Copiepress, I gather:

L'expert a conclu que les reproches formulés par les éditeurs de presse sont fondés et que les procédés des deux sites EMM sont très proches de ceux de Google.

It's saying that he compared the EU Commission's search engine with Google's and found them similar. But this time, the court accepted the EU Commission's argument that a computer expert isn't a legal expert, duh, and that a second report was needed to address that part of the dispute, since when the first was ordered, the EU Commission was not present before the court. Only Copiepresse was there with its expert -- by the way, do you remember that this is exactly what happened to Google too? Once the EU Commission appeared, the earlier report, favorable to Copiepresse, was insufficient and another report was needed. That one won the day for the EU Commission. So, it's off to civil court to try, try again for Copiepresse. But that seems odd. If I have understood her statement, she wants to go not to the European court on appeal, as directed, but to the same civil court where it won against Google, so far. But my memory, and Sean's, is that Boribon always said she hoped that there will be European jurisprudence following the decision of the Brussels court. [Update: Here it is, in Sean's interview with her in 2006.]

Meanwhile Google is appealing the order against it, as you know, but recently Copiepresse, rather than wait, began kicking up some more dust in Google's direction, which I'll let Sean Daly tell you about in the next article.

Copiepresse is just part of the story, of course. This is old media versus the Internet or perhaps more a matter of wishing one's palm crossed with silver. And frankly, when there is new tech, it often happens that there is this money dance while all the players, old and new, work things out. If you recall, back in 2006, the World Association of Newspapers (WAN) announced that it would "challenge the exploitation of content" by search engines like Google and MSN. At the end of the year, Copiepresse sued Google.

Here's the part, in French, about Copiepresse not appealing:

Margaret Boribon, la secrétaire générale de Copiepresse, a fait savoir vendredi à l'agence Belga qu'elle n'avait pas l'intention d'interjeter appel "pour des raisons stratégiques". Et de souligner que le débat se poursuivra devant le tribunal civil de Bruxelles, où une action en cessation est introduite.

She expresses indignation that the EU Commission didn't even answer or acknowledge her mail. And why, she asks, would the court make such a U-turn? They provided them an expert's report. They thought the court was on its side.

But the story from the EU Commission is very, very different. Their lawyer, Isabelle Schmitz, says that the study that it provided the court was completely unbiased, and it found that in contrast to what Copiepresse claimed, the news aggregators are completely legal, because the law allows for situations where it's not necessary to get the author's permission to use a work. One such exception is for press review.

The court accepted the need for a new report because at first only Copiepresse was before the court. After the EU Commission presented itself, a report by just one party was insufficient. The new report, based on legal analysis, I gather, not technical, convinced the court to change its position.

Copiepresse used its expert to claim publicly that this was proof the Commission was infringing its copyrights, Schmitz is quoted as mentioning. But experts on technical things are not qualified to be legal experts. And Copiepresse based its legal position on a *technical* report. As far as the EU Commission is concerned, they have done nothing illegal and at all times they have respected the law of copyright.

Not only that, but Ms. Schmitz says pointedly that Boribon never sent any mail or contacted the Commission otherwise to complain about the news aggregators before initiating its litigation.

So that's the latest news on Copiepresse. If some of you notice corrections that need to be made, based on your understanding of French or your understanding of the Court of First Instance, please let me know. This represents my best effort at working with a language I am rusty in and a lack of experience with EU laws and courts. But the overview is still helpful, I trust. And encouraging. I believe you can extrapolate to the AP v. the bloggers dispute without any assistance from me.

1 Here's the section from the Court of First Instance's finding in its reaffirmation of its September 2006 ruling against Google about the exception for news commentary:

Citations for the purposes of critique, polemic, teaching, review or in scientific works and insofar as justified by the intended aim:

Considering that Google maintains that the Google.New site operates as a review of the press and that the citation of the titles of newspapers and extracts from articles fulfills the aim of a review and is justifiable with regard to the said aim;

That Copiepresse and the voluntary interventions of the third parties insist, on their part, on the fact that unlike in France, the Belgian legislator did not consider creating an autonomous exception for a "review" but that this exception is subject to the system of citation so that the articles cited must be in the framework of a coherent commentary of which they only comprise an illustration, the review must also comprise other elements;

That they consequently consider that the sole random juxtaposition (as practised by Google in an automatic way) fragments of articles not being a summons, these, being by definition and accessory and that must be used in the limits of the intended demonstration;

Considering that Google.News is exclusively made up of extracts of newspaper articles groups by topic; That the reference is entirely automated;

That Google maintains that the Google News service is based on the automated indexation by a robot similar to that of the search engine Google Web for press articles disclosed on the Internet; that the classification of articles by topic is realised automatically, without human intervention;

That the Google.News site consequently does not incorporate "citations" and consequently owes its substance to extracts from reproduced works, which is contrary to the spirit of the institution of the citation law (T. Verbiest, Entre bonnes et mauvaises références. A propos des outils de recherche sur Internet, Auteurs & Médias, 1999, p. 42);

That in effect, the citation is, in principle, used to illustrate a proposal, to defend an opinion;

Moreover that it does not appear that the editing of articles carried out by Google.News may be defined as a "press review";

That the citation for the end of review was introduced by the Act of 22 May 2005;

That the Larousse defines a review as "Action for examining a set of elements with care and in a methodical way" while the "press review" is defined as: "Comparative report of the main articles in newspapers on the same subject";

That this definition is confirmed by the Dutch term of the act recensie or recension in French defined by Larousse as "Critical analysis and report of a work or a review";

That the object of the final conclusion of the review consequently should not be the collection of elements intended to give a general insight into a theme but the comment on a work (B. Michaux, Droit des bases de données, Kluwer 2005, p. 27);

That in this case, Google limits itself to listing the articles and classing them, and this in an automatic way; That Google.News does not carry out any analysis, comparison or critique of these articles which are not commented on in any way;

That this condition is consequently not fulfilled in this case; That it may consequently be deduced that Google cannot maintain the exception of citation without it being necessary to examine if the other legal conditions are fulfilled;

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