One Problem With FTC/Google Settlement: Implies Fair Use Scraping Is An Antitrust Issue

from the not-good dept

While we've already covered the "settlement" between the FTC and Google, noting that it's basically a complete win for Google, there are some areas to be concerned about. In particular, Ed Black, from CCIA, calls out the agreement from Google to allow companies to opt out of being scraped and having snippets shown in vertical search results. While the details on this are fairly limited, and no one would have complained if Google had decided to do this on its own, by including it as part of the settlement, it can be read to imply, without any legal basis, that showing snippets of content from another site is an antitrust violation.

The wider impact of this could be serious, in that it could scare off other companies from doing this kind of activity, which is clearly protected under fair use laws. Of course, the FTC's official release on this issue didn't do much to clarify the thinking here, which is a part of the problem. Two FTC commissioners dissented on this particular bit, showing their concerns. Thomas Rosch's dissent (pdf) on this particular issue states he's worried about the implications, whether intended or not:

I am concerned that the majority's apparent position that scraping is a violation of Section 5 of the FTC Act will put the FTC in the position of becoming the enforcer of the copyright laws on the Internet—a task for which it has neither the resources nor expertise, and was surely not envisioned by Congress. As any casual user of the Internet knows, many websites make use of other websites' content; indeed, the business model for many popular websites is based on aggregating or summarizing the content of other websites. As a result of the majority's apparent condemnation of scraping, the legality of these aggregators may be called into question, and the Commission may be inundated with rent-seeking complaints from firms like the alleged 'victims' here.

In other words, in part due to the FTC's own refusal to clarify the thinking here, expect plenty of companies upset about scraping and the use of snippets to now go running to the FTC, using the Google settlement as "evidence" that the fair use aggregation and display of snippets is an antitrust violation. Elsewhere, Rosch points out that the whole issue of scraping seems silly since Google has no "monopoly" on scraping, so it's not even an antitrust issue -- and also that there had been no demonstration of any harm from Google's actions.

Similarly, Commissioner Ohlhausen, while not directly commenting on the copyright issues apparent in this decision, notes that scraping and displaying of snippets -- a key bit of fair use that is central to large parts of the internet -- seems like a bizarre thing to complain about since there is no legal basis for a complaint (pdf) and because the actions appeared to help, not hurt, the companies complaining:

Based on the evidence gathered in this investigation, I saw no factual or legal basis for pursuing... a standalone FTC Act Section 5 claim premised on the so-called scraping conduct.... In particular, there is no viable theory of harm ... for bringing a case....

I am not aware of any evidence that the alleged scraping resulted in either a decline in traffic from Google to the parties complaining about the scraping or any reduction in innovation by existing or potential rivals of Google. In fact, some of the complainants in this matter demonstrated significant growth both during and after the alleged scraping took place. Further, the investigation revealed that most websites appear to approve of Google's use of their content in Google's vertical properties because it leads to increased traffic to their sites. Moreover, the likelihood of possible future harm to competition or consumers from such conduct appears highly remote, particularly given the enormous growth of the use of apps to access rivals' sites or services directly.

In other words, the evidence seemed to show that such fair use of aggregating content and displaying of snippets actually drives innovation and consumer benefit forward.

Furthermore, in a press briefing after the FTC announcement, law professor Eric Goldman made a significant point. For many "review sites" that the settlement applied to, the sites themselves don't even hold the copyright on the reviews in question (the authors do), but the settlement seems to presume that the sites hold the rights.

Unfortunately, because of the nature of the settlement, and Google's willingness to allow companies to opt-out of parts of its aggregation efforts in vertical search, it's going to falsely lead some to believe that anyone else doing this may, in fact, be in violation of antitrust laws. The end result may scare companies off from doing useful innovation, relying on fair use to aggregate content online, and may also increase the burden on the FTC in dealing with similar claims from companies. That would be an unfortunate end result.

Filed Under: antitrust, copyright, fair use, ftc, snippets
Companies: google

Rupert Murdoch Admits Defeat: Now Wants London Times To Appear In Search Results

from the nobody-predicted-that dept

Remember back in 2009, when Techdirt reported that Rupert Murdoch hated Google so much he had decided to block the search engine from indexing his titles, even though this would inevitably cut down their visibility and online traffic? He obviously thought that he would put this upstart technology in its place, showing that mighty media moguls don't need this Internet thing in order to flourish just like they did 50 years ago. According to this story in paidContent, it seems that strategy hasn't worked out too well:

In the next few weeks, paidContent understands The Times' website will begin showing articles' first two sentences to search engines, in a marketing exercise designed to attract new subscribers.

The limited free preview does not alter News International's belief that it should continue charging for The Times (visitors will be invited to subscribe to read full articles). But it does suggest that, having signed up 130,751 digital subscribers since mid-2010, the publisher is having to look in new places to maintain customer acquisition momentum.

This shows that Murdoch has finally realized that being left out of Google is the online equivalent of not being listed in telephone directories in earlier times. It also suggests that attempts to gain subscribers for the online edition in other ways are not going so swimmingly, which must raise questions over the long-term viability of the paywalled approach for this title.

Murdoch's move comes at an interesting time for the newspaper industry in Germany. As we discussed recently, a law currently being considered there would require snippets to be licensed and paid for on the basis that search engines are gaining a benefit from even these short extracts. By allowing his title to be indexed and short excerpts to be displayed for free, Murdoch is essentially admitting that the marketing value of snippets to him outweighs any nominal loss due to Google's supposed free-riding -- as Techdirt suggested -- thus undermining the supposed justification for the German proposal.

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Filed Under: copyright, london times, paywalls, rupert murdoch, search, snippets
Companies: news corp.

German Government Wants Google To Pay To Show News Snippets

from the not-this-again dept

Some bad ideas just keep on coming back, despite the fact that they are manifestly stupid. Trying to get Google and others to pay for the privilege of sending more traffic to newspapers by including short snippets from their stories is one of them. Of course, logic would dictate that the newspapers should be paying Google for the marketing it provides, but unfortunately not everyone sees it that way.

Last year, the Belgian courts decided that Google was infringing on newspapers' copyrights just by linking to stories. Google was ordered to remove those links, at which point the newspapers started whining about "harsh retaliation" -- even though it was the court's decision, not Google's, and it was the newspapers' legal action that brought this about.

Sadly, the German government doesn't seem to have been paying attention to that rather ridiculous saga -- or maybe simply doesn't care -- and has just announced that it will bring in a compulsory licensing scheme for the use of even "small parts" of journalistic articles on commercial sites (original German).

The justification is that this will allow publishers to share in the financial benefit arising from this use, and for authors of the articles to receive an "appropriate" contribution, whatever that means. To do that, of course, will require the creation of yet more bureaucracy: a new collecting society (let's hope it doesn't turn out like the German music collection agency GEMA.)

What that overlooks, of course, is that Google, clearly the main target here, doesn't make any money from its Google News service, which is ad free. It would be nice to see Google simply remove all links, as happened in Belgium, and then wait for the German publishers to start complaining about this further example of "harsh retaliation". Sadly, that's unlikely to happen, since Google tends not to take a particularly aggressive stance on these issues (probably hoping to avoid further anti-trust complaints.)

Of course, the analysis above assumes that the still extremely vague proposal is simply a plan to skim some money off major Internet players like Google and to hand it to the German publishing industry so the latter doesn't need to worry about innovating. But given that the copyright industries' sense of entitlement knows no bounds, it's even possible that publishers want this scheme to apply to every quotation from their newspapers and magazines -- including those in blogs with any Google Ads, say, and Facebook posts. Now might be a good time for German Internet users to start raising the alarm, just in case.

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Filed Under: copyright, germany, licensing, news, snippets, web
Companies: google

Did European Court Just Make Search Engines Illegal? 11-Word Snippet Can Be Copyright Infringement

from the bad-bad-bad-bad dept

With the AP being out there claiming that fair use only covers snippets fewer than five words, there are some questions about where the boundaries for "fair use" of "snippets" lies. Unfortunately, a new ruling in Europe seems to be pretty extreme (in a bad way). The ruling found that a snippet as short as eleven words could be copyright infringement. The case involved a clipping service, that would scan in articles (from print publications) and then would give clients very short snippets that highlighted the keywords they were monitoring. In many ways, this sounds like the physical equivalent of any online search engine. The clipping company claimed that it was legal because it was "transient," but the court said that since the service printed the output on paper, it was "permanent." Yikes.

While the online world is a little different, it's not too difficult to see how someone could make a case that a search engine is doing the identical thing to what the clipping company was doing here, and the question of whether or not the result is "transient" or "permanent" is entirely dependent on the end-user -- which was part of why the court found paper to be permanent:

"Since the data capture process is apparently not likely itself to destroy that medium, the deletion of that reproduction is entirely dependent on the will of the user of that process. It is not at all certain that he will want to dispose of the reproduction, which means that there is a risk that the reproduction will remain in existence for a longer period, according to the user's needs,"

Certainly, you could say the same thing about a search engine result (the end-user could certainly store them -- or [gasp!] print them), and then you've got the same problem. No matter how you look at it, this is a bad ruling. It makes little sense from the perspective of publishers, clipping services, users or the entire online world.

Filed Under: clipping service, copyright, europe, search engines, snippets, transient use

Could Your Website Be Liable For The Way Google's Algorithm Summarizes It?

from the that-doesn't-seem-right dept

Ruby writes in to let us know that a Dutch website, Miljoenhuizen.nl, has been found liable for the way that Google summarized the content on the website. Google, of course, has algorithms that try to summarize the contents of a page in a snippet so that you know what's behind the link, and how it relates to the search that you do. As a part of that, it often will show parts of sentences connected by ellipses, and that's what happened here. The snippet on Google read:

Complete name: Zwartepoorte Specialiteit: BMW...This company has been declared bankrupt, it has been acquired by the motordealer I have worked for Boat Rialto...

This upset Zwartepoorte, an auto dealer, who felt that this summary falsely stated that it had gone bankrupt... so it sued the underlying site. It's quite surprising (on a number of different levels) that it didn't sue Google as well (or instead). However, the court actually agreed that this was the fault of the original website owner, and told Miljoenhuizen.nl to fix the website so that Google wouldn't summarize the site that way. It's hard to fathom how this could possibly be Miljoenhuizen.nl's fault, though apparently someone from Miljoenhuizen.nl suggested that it could control that in the courtroom -- which likely resulted in the judge's ruling.

Filed Under: liability, search, snippets, summaries
Companies: google

AP Exaggerates The 'Conversation' It's Having With Bloggers; Caught Copying Text From Bloggers As Well

from the and-it-gets-worse dept

The situation with the Associated Press and its rapidly disintegrating relationship with bloggers keeps getting worse. First up, as a bunch of folks have sent in, some bloggers are noting that, despite the AP's own claims about quotes over five words long no longer being fair use, AP reporters often quote huge chunks of text from bloggers. That link discusses an AP article just this week that quoted 154 words from a blog. So will these "new guidelines" that the AP is supposedly working on with bloggers include guidelines for itself? What about payment and licensing terms? And, honestly, what happens if a blog now quotes the passages quoted in the AP article itself. At 154 words, will they receive a DMCA takedown notice?

Oh, and as for that supposed "meeting" to hammer out guidelines with the "Media Bloggers Association," it turns out that's quite an exaggeration as well. With a bunch of folks questioning who put the previously unheard of "Media Bloggers Association" in charge of determining what bloggers will accept, an interview with the head of that group shows that his meeting isn't to hammer out any such guidelines -- but was simply intended to present the Drudge Retort's side of the story. Rogers Cadenhead asked the head of the group to speak on his behalf to the AP. It's the AP that's turned this meeting into the Media Bloggers Association representing all bloggers, rather than just Cadenhead.

So, now we've got the AP caught not just breaking its own rules (by a wide, wide margin), but also exaggerating the nature of the "conversation" it's supposedly having with the bloggers who are upset by its actions. Do people still think that bloggers were overreacting in calling the AP out on its actions?

Filed Under: blogs, drudge retort, fair use, rogers cadenhead, snippets
Companies: associated press

AP Goes After Bloggers For Posting Article Headlines And Snippets

from the you're-going-to-lose,-badly dept

Last fall, the Associated Press claimed that it was ready to change to face the new internet world -- and that meant not just being a gatekeeper, but joining in the conversation. As we noted at the time, though, AP execs said all that, only to immediately follow that up with plans that looked like it was trying to become a new type of gatekeeper. It didn't help that the company had also just sued VeriSign's Moreover division for linking to AP stories along with a title and a tiny excerpt. That sort of thing is clearly fair use -- but the AP doesn't seem to think so.

And, now, it's expanding its target list. Rather than just going after the big aggregators (surprisingly, Google settled), it appears that the Associated Press is going after bloggers for merely posting a linked headline and a tiny snippet of text from the article. In this case, Rogers Cadenhead informs us that the AP sent 7 DMCA takedown notices last week to his site, the Drudge Retort (a site that mocks the Drudge Report). In six cases, a blog post on the site quoted just a small snippet of text from an AP article (between 33 and 79 words -- nowhere near the full length of the article). In every case, they also contained links back to the original AP article. Five of the six used a different headline than the original AP article. The other complaint was about a comment to a blog post, which also included a very short snippet and a link.

On the face of it, it's nearly impossible to see how this isn't fair use, even though an AP representative insists it's not:

The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

Hopefully, they won't send a takedown notice for quoting that. This is pure bullying on the part of the Associated Press, and a clear overstepping of its legal rights. It's most certainly not a sign that the organization has adapted to the internet age. In fact, the most amazing thing is that these types of uses (a snippet and a link) clearly help drive more traffic to those AP articles. This is a pure "shoot-self-in-the-foot" move by the Associated Press -- and if they have any sense of decency they should issue a very public apology.

In the meantime, since the Associated Press apparently no longer wants traffic, we'll start looking for other sources when linking to stories. I can't promise we won't link to any AP stories (they're everywhere), but given the opportunity we'd prefer to link to a news organization that's happy to accept our traffic, rather than one that might sue us for pointing people their way. This is quite unfortunate, as there are many AP reporters who read this site, and with whom I have come to build a strong relationship. I think they're quite good reporters, and it's too bad they work for such a short-sighted organization.

Update: Someone from the AP has posted a response in the comments. It makes some claims that simply do not seem to represent reality, including trying to define what is and is not "the link-based culture of the Internet." It claims that it won't go after snippets -- but doesn't explain why that's exactly what it did. And then it responds to a blog post from Jeff Jarvis that I have not seen and did not reference. If the AP seriously wants to respond, why not respond to what is actually happening or what we actually said, rather than someone else. Update 2: I should also note that the comment from the AP includes what appears to be a bit of a sales pitch suggesting that bloggers license AP articles.

Filed Under: blogs, drudge retort, fair use, rogers cadenhead, snippets
Companies: associated press