AFP, a news agency that syndicates content to various news publications, took issue with Google News unauthorized posting of AFP "photographs, headlines and story leads" on Google Inc.s news Web site.
The Google News site mechanically aggregates current news stories, posting with each headline the name of the Web site publishing the story, the articles "lead" and often a photograph. A user can link to the full story on the originating Web site or link to other features on the same subject. The case is likely to turn on the question of whether Googles unauthorized use is nevertheless a fair—and therefore defensible—use.
In copyright cases, whether an act of reproduction is fair use is determined according to malleable statutory factors. For example, a court will look to the purpose and character of Googles use of the photographs and text, including whether that use is nonprofit or commercial, the size of the excerpts, and the effect on the market for AFP subscriptions.
In a similar case from 2003, a federal appeals court in California ruled that it was fair use of an artists photographs to post small, low-resolution thumbnail images of those photographs on the defendants Web site, which linked consumers to sellers of the images it found.
In this case, a court may, however, consider Google News to be more than a mere search engine, as the site arguably conveys enough textual and visual information to satisfy some Internet news seekers notoriously short attention spans.
The more a use transforms the original work into something new, with a further purpose and a new character, the more likely it will be held fair use. This may be the heart of this particular conflict. AFP has labeled Googles use "not transformative in any way."
Google, however, has taken pains to brand itself as unique in the field of Internet news. Google will likely argue that it transforms news clips by liberating articles from their hidden politicized and ideological contexts. In an era where accusations of media bias are shouted on every corner, a court may accept this vision of transformation.
However the case ultimately plays out in court, AFP has scored a preliminary victory: Google has undertaken to remove all AFP articles and photographs from its site. However, AFP might find it ought to have been careful what it wished for.
After all, the online newspapers originating AFPs syndicated content (and, incidentally, paying AFPs bills) must have been enjoying Googles complimentary routing service. Hopefully for AFP, subscribers wont mind this end to free press.
Peter J. Karol is an attorney with Bromberg & Sunstein LLP, a Boston law firm specializing in intellectual property. He can be reached at firstname.lastname@example.org. Free Spectrum is a forum for the IT community and welcomes contributions. Send submissions to email@example.com.