Two legal battles from opposite sides of the Atlantic resurfaced last week after Google issued a detailed response to a $1bn (£500m) copyright claim from media owner Viacom, and a September court date was set in its row with Belgian newspaper publishers over news aggregation.
The outcome of the disputes could have wide-reaching implications for online content providers.
YouTube owner Google responded to Viacom’s claims, saying the media conglomerate’s complaint goes against a 10-year old US law designed to encourage and protect services such as YouTube.
The Digital Millennium Copyright Act came into force in October 1998, introducing several provisions relating to limitations on and exceptions to the liability of online service providers for copyright infringement.
Google also faces a €49m (£38m) suit for past damages from Copiepresse, a company comprising several Belgian newspaper publishers, for the way the search engine aggregates its news service. The case has been running since 2006, and in 2007 a Belgian court ruled against Google, asking it to remove certain content, a decision which Google has appealed.
The problem is not Google’s role as a search engine, but the way news content is stored and published, said Margaret Boribon, secretary general of Copiepresse.
“In Europe except UK and Ireland, where copyright is applied a publisher who wants to put the content of their newspaper on an internet site, needs to have an agreement with all the journalists and photographers, and pay them rights for the reuse of the content,” she said.
“So why should a publisher then accept that a third party takes that content and reuses it without prior authorisation and without payment?
“When Google acts as search engine and doesn’t make the content available on the cache pages, no problem. When Google News presents itself as an information portal, but in fact aggregates the content from other sites without prior authorisation and fair remuneration, it is a clear infringement to the European copyright legal framework.”
Google said in a statement: “We strongly believe that Google News and Google web search are legal, and that we have not violated Copiepresse’s copyright. We consider that this new claim for past damages is groundless and we intend to vigorously challenge it”.
And the UK Intellectual Property Office said: “The YouTube case is being decided by US courts under US law. Although we are interested in the case, the decision will not apply in the UK.”
While most intellectual property copyright law is subject to international conventions, the perception of the extent and nature of fair use can create distinctions. And the infringement can relate both to the amount of copy that is reproduced or the importance of that part of the copy.
“Essentially, if you publish too much, either qualitatively or quantitatively, you can be sued. So there can be sufficient breach of copyright in reproducing headlines,” said Dai Davies, partner at law firm Brooke North.
“With most internet copyright infringement, the cost of taking out action is not worth the damages the company will recover.
“But here you have a large corporation such as Google and it becomes economic to sue. If Google is breaching copyright, it’s allowing thousands, or hundreds of thousands of people to download the content, and it therefore becomes worthwhile to enforce it.
“Google might get sued, it’s a risk they’ll take in business. It’s not going to close them down,” said Davies.
“If it became more common they’d have to reassess the risk, but I can’t see it happening. Most of the time it’s not worth it.”
Claim and counter claim from Google and Viacom
“YouTube has harnessed technology to wilfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America’s creative industries, and profiting from the illegal conduct of others as well.
“YouTube’s brazen disregard of the intellectual property laws fundamentally threatens not just plaintiffs, but the economic underpinnings of one of the most important sectors of the United States economy.”
“Viacom’s lawsuit challenges the protections of the Digital Millennium Copyright Act. Congress recognised that such services could not and would not exist if they faced liability for copyright infringement based on materials users uploaded to their services.
“By seeking to make carriers and hosting providers liable for internet communications, Viacom’s complaint threatens the way millions of people legitimately exchange information, news, entertainment and political and artistic expression.”