The document discusses the operations of search tools and how they can potentially conflict with copyright law. It examines approaches in the US, EU, and other countries. The US generally finds search tool activities like caching and displaying snippets to be fair use. The EU approach is more divided, with some courts finding violations while others see no harm. The document explores options for better protecting search tools, such as exceptions in copyright law, clarifying implied licenses, or understanding the tools as using information rather than copyrighted works.

1. Searching for… implicit
licenses online
IPR University Center, October 27, 2010
Cédric Manara
Associate Professor of Law, EDHEC Business School
Affiliate Researcher, IPR University Center
<www.cedricmanara.com>

2. [Credits]
 This research was made possible by a gift
from Google Inc.
 The donator does not fix nor control
methodology, findings, results, etc.
 This presentation is about search tools in
general, not about Google in particular
2

3. Wide variety of search tools
3

4. 113 billion searches in July 2009
(+ 41% / 2008)
 More searches on Google than any other
engine: 76.7 billion searches conducted
(67.5 % market share)
4

5. How do search tools operate?
Crawling
5

6. How do search tools operate?
Caching
6

7. How do search tools operate?
Inline linking
[Forum des Droits sur l‟Internet, Hyperliens : statut juridique, 2003]
7

8. How do search tools operate?
robot.txt
 Disallow: /  robots should not visit
any pages on the site
 Disallow: /thispage/  robots
should not visit this page
─It is also possible to “block” one robot in particular,
or allow access to one only
 <noindex>  robots should not index
the content of a page
8

9. Search tools are highly
 important to our (digital) lives
 dependant on copyright laws
9

10. (C)ontradiction
 Can the contradiction between
• copyright rules
• & search tools‟ ways of operating
 be resolved?
1. The US approach
2. The EU approach
3. How can search tools be protected?
10

11. Out of scope: Indexation of the
physical world [1]
11

12. Out of scope: Indexation of the
physical world [2]
12

13. 1. US approach
 US
• Field v. Google
• Kelly v. Arriba
• Perfect 10 v. Amazon & Google
 („Safe Harbour principles‟ not addressed here)
13

14. Field v. Google (2006)
 Field complained Google was archiving the
content he published online
14

15. Legal issues
 Does the creation of a cached copy
constitute unauthorized copying?
 When Google displays the cached copy as
a result to a user, is it unauthorized
distribution?
15

16. No direct infringement
 The entire process of displaying the search
results and then viewing the cached page
was a non-volitional act on the part of Google
 The person who publishes online accepts to
be included in search tools index, except if he
gives notice of his refusal
 Note: Field did not allege that the initial
creation of a cached copy, as part of its
cache database, was infringement
16

17. Fair use? Yes
 Purpose & character
• With the creation of cached copies, Google is
increasing access to the work
• Google allows access when the original pages cannot
be accessed
 Nature of the copied work
• Creative work  Greater access should be allowed
 Amount and substantiality of copied work
• Material was made freely available
 Effect upon original work's value
• No evidence that the cached copy had any impact on
the potential market for Field's work (no commercial
impact + works available for free)
17

18. Kelly v. Arriba (2003)
 The fair use doctrine permits the use of the
thumbnails in the image index
 Note: Ruling unclear on whether the inline
linking or framing processes that displayed
Kelly's images in the context of Arriba's web
site were lawful
18

19. Perfect 10 v. Amazon & Google
(2007)
 Inline linking ≠ Material hosting
 Google's use of thumbnails is fair use, in
particular because they are “highly
transformative”
• Transformation of images from a use of
entertainment and artistic expression to one
of retrieving information
19

20. Other countries
 India (?)
• “Indian courts would see a reasonably clear
transformative character in the act of caching”
- Amlan Mohanty, 2010
 Canada: fair dealing (??)
 Australia, Israel (???)
20

21. 2. EU approach
 Theory
• EU copyright principles go against the
functioning of search tools
 Practice
• Member States courts diverge in applying
them
21

22. Directive 2001/29/EC, Art. 5.1
 Temporary acts of reproduction referred to in
Article 2, which are transient or incidental and an
integral and essential part of a technological
process and whose sole purpose is to enable:
• (a) a transmission in a network between third parties
by an intermediary, or
• (b) a lawful use
 of a work or other subject-matter to be made,
and which have no independent economic
significance, shall be exempted from the
reproduction right provided for in Article 2.
22

23. ECJ, Case C-5/08
Infopaq International A/S v. Danske Dagblades Forening
 1. An act occurring during a data capture process, which
consists of storing an extract of a protected work comprising
11 words and printing out that extract, is such as to come
within the concept of reproduction in part within the meaning
of Article 2 of Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related
rights in the information society, if the elements thus
reproduced are the expression of the intellectual creation of
their author; it is for the national court to make this
determination;
 2. The act of printing out an extract of 11 words, during a
data capture process such as that at issue in the main
proceedings, does not fulfil the condition of being transient in
nature as required by Article 5(1) of Directive 2001/29 and,
therefore, that process cannot be carried out without the
consent of the relevant rightholders.
23

24. Quotation? No
[screenshot : TechCrunch, Sept. 28, 2008]
24

25. National caselaw
 Belgium, France, Germany, Italy, Spain (and…?)
25

26. Belgium (2007)
 CopiePresse v. Google
• Storing content in the cache memory is an illegal reproduction
• Allowing access to internet users is an illegal display
26

27. France [1] (2008)
 SAIF v. Google
• SAIF is a PRS that represents Doisneau, Henri Cartier-Bresson,
William Klein, Yann Arthus-Bertrand, Sebastiao Salgado…
 Copies were made in the US / were displayed in France
 Which law applies?
 Court takes into account the place where the infringement
was „generated‟
• Il est manifeste que cette activité, à savoir celle de développeur de
moteur de recherches, est l‟activité centrale et première de la société
GOOGLE Inc. et que c‟est donc le siège social de la société GOOGLE
Inc. qui est l‟endroit où les décisions sont prises et où l‟activité de
moteur de recherches est mise en œuvre au sein des locaux de la
société GOOGLE Inc. qui doit déterminer la loi applicable au litige
 Applies the 1976 US Copyright Act  Fair use
27

28. France [2] (2009)
 H & K, André R. v. Google
28

29. Spain (2008)
 Pedragosa v. Google
29

30. Pedragosa The Court
• Illegal display of • It cannot be denied
works of art in Google that Google’s activity
results violates the holder’s
IP rights
• Illegal copies of this
content on Google
servers
30

31. Ruling
 Court eventually ruled that Google must not be
fined:
• There are natural limits to the monopoly conferred by
IP rights
• The purpose of the use must be taken into account
─Facilitate search for internet users, who will be
able to choose what is relevant to their search
• No harm to the economic value for the publisher ;
instead the search tool contributes to access to the
works of art, and thus to their value
 Case pending before the Spanish supreme court
31

32. Germany (2010)
 Vorschaubilder complained Google displayed her graphic works as
thumbnails
 Lower instance court decided in Google‟s favor
 Court of appeals
• found that Google was infringing the claimant's copyright in her works
• … but said the artist's claim was an abuse of rights under Article 242
German Civil Code (good faith requirement).
 BGH ruled Google did not infringe the claimant‟s copyright (I ZR 69/08,
April 29, 2010)
• the complainant had neither made an express nor an implied legal
declaration in which she had agreed to Google's use of her works as
preview pictures
• However, display of images not unlawful because the search tool could
interpret the complainant‟s actions as consent to the display of her
works in search results
• Content made accessible to search engines without using the available
technical possibilities that would have prevented the works from being
searched and displayed by search engines
32

33. Objections
 Law
• No rigorous reading of the applicable texts
 Fact
• Of course the complainants did not want to
permit use of her works by Google (otherwise
they would not have sued!)
– [they only sued Google, though]
33

34. Italy (2009 – 20..)
 FIEG v. Google
• Italian country‟s newspapers claim Google
won‟t run their content on its search engine
unless it also appears on its news pages
• Google says it allows companies to opt out of
the news service and remain on its search
engine
34

35. 3. How can search tools be
protected?
 What did we learn?
• Copyright owners have different views
─ Absolute refusal
─ Negotiation on the conditions
─ Indifferent
• Judicial responses are diverse
─ Courts sometimes attempt to adjust
─ Abuse of rights
─ (De minimis non curat praetor)
• Risks are limited in practice (visibility, costs, C&D)
• Law nevertheless forbids search tools operations
35

36. Change the
law?
 Add an exception to the EU legislation?
 TRIPS Agreement, Art. 13 - Limitations and
Exceptions
• Members shall confine limitations or exceptions to
exclusive rights to certain special cases which do not
conflict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of
the right holder
36

37. Change the
law?
 Example of Japan
 Article 47-6 Copying for the purpose of searching for uniform resource locators of information made
available for download
• A business with the purpose of searching uniform resource locators of information made available for
download and displaying the search results in answer to requests from the public may, as far as necessary
for such search and display, store and adapt information made available for download on storage media, and
may serve automatically in answer to requests from the public a copy of such information relating to the
uniform resource locators served, including making the information available for download.
• An uniform resource locator is a string of characters, numbers and other code used to distinguish
information made available for download.
• Search engine businesses include those providing only partial services, but are restricted to those that
comply with the standard for collecting, organizing and providing information made available for download
laid down by government ordinance.
• For information made available for download only after requiring input of an access code identifying the user
or other means of restricting the access are applied, the exception applies only if the person who restricted
the access gives permission.
• The search engine business may also store secondary works in the course of storing or adapting
information.
• The search engine may display such secondary works in combination with the information made available
for download. This is called “records for displaying search results”.
• However, if the search engine business knows that the information made available for download regarding
records for displaying search results is in violation of copyright, it may not serve automatically in answer to
requests from the public such records for displaying search results, nor may it make the records available for
download.
• In case of information made available for download in foreign countries, this restriction applies if it would
violate copyright in case of serving the information in Japan.
37

38. Change the
law?
 Example of India
 Proposed amendment to the Indian copyright Act
Section 52(1), 'acts not to be infringement of
copyright„:
• “(i) the transient and incidental storage of a work or performance
purely in the technical process of electronic transmission or
communication to the public;
• (ii) such transient and incidental storage for the purpose of
providing electronic links, access or integration, where such
links, access or integration has not been expressly prohibited by
the right holder, unless the person responsible is aware or has
reasonable grounds for believing that such storage is of an
infringing copy; Provided that if the person responsible has
prevented the storage of a copy on a complaint from any person,
he may require such person to produce an order from the
competent court for the continued prevention of such storage.”
38

39. Change understanding of the
facts?
 What does the search tool use:
• copyright,
• or the information it conveys?
 Louis Feraud v. Viewfinder Inc. [US District Court, S.D. New York, Sept. 29,
2005 406 F.Supp.2d 274]
• Plaintiffs are correct that “First Amendment protection does not extend
to copying the works of others.” … But that is not what has occurred
here. Viewfinder has not copied plaintiffs' dresses; it has displayed a
particular depiction of them
39

40. Change understanding of the
legal relationship?
 Explicit consent v. implicit consent
 What do people intend to accept when
they publish online?
 Is it neutral to go online?
40

41. Analogies
 Posters on walls
 T-shirts in streets  Public spaces
 Ringtones
 Letters to editors  Private space
Release of a work within a space
 consent to the expected effects therein
41

42. Contractual relationship between
search tools & publishers?
 Bing: “Why some results have been removed”
• Bing blocks results that are spam or malware. In these cases,
we'll remove a result from the Bing index, but it might appear for
some time after we tag it and before it's actually removed. Until
then you‟re notified that "some results have been removed.”
• Bing removes pages with duplicated content from search results.
Although duplicated pages aren't always removed from the
index, only those with the highest ranking are included in results.
 Google Webmasters Guidelines
• Google never accepts money to include or rank sites in our
search results, and it costs nothing to appear in our organic
search results
• Practices that violate our guidelines may result in a negative
adjustment of your site's presence in Google, or even the
removal of your site from our index
42

43. Disputes (only) give birth to a
contract?
43

44. Are there such things as implicit
licenses?
 Use of robots
exclusion
protocol
instead?
 Estoppel?
44

45. Consent or not consent?
 Web standards  Individual will
 Individual will  Social needs
45

46. Kiitos!
Tack!