News Corp. Claims Google News Is An Antitrust Violation In Europe

from the good-luck-with-that-one... dept

With Google already facing antitrust issues in the EU over Android (and likely over search as well), News Corp has decided to pile on and to file a complaint with the EU Commission claiming that Google News is also an antitrust problem.

News Corp is concerned Google reinforces its dominance in general search by “scraping” or copying content from publishers to display the results of news articles, according to the person. News Corp alleges that if the publisher doesn’t want the content to be copied, Google doesn’t show the articles in the results at all, the person said.

That News Corp hates Google is well known. The company's CEO, Robert Thomson, has a history of barely comprehensible anti-Google rants, based on a confused (i.e. wrong) understanding of how the internet works. Thomson keeps claiming that Google is "stealing" News Corp content by linking people to it and sending the company traffic.

And, again, that seems to be the basis of the complaint here as well. It's difficult to parse what the complaint even means. News Corp "is concerned Google reinforces its dominance in general search by “scraping” or copying content from publishers to display the results of news articles...." Huh? Google indexes the web. That's what it does. That's how search engines work. Is News Corp trying to argue that indexing the internet is illegal? Really? And the fact that it's built a specialized news service -- how is that a problem?

And then the complaint seems to flip over into a complaint that Google doesn't do enough: "News Corp alleges that if the publisher doesn’t want the content to be copied, Google doesn’t show the articles in the results at all." Um, okay. If you don't want Google to index your content, then how can it show the articles in the results? It doesn't have the information to do so.

So what is News Corp's complaint here? First it's that Google indexes their content... and then they complain that if Google doesn't index their content, they won't show up in search results. This makes no sense at all.

Of course, that's because we know what the real complaint here is: News Corp wants Google to give it money. Whatever you might think of the EU's antitrust case against Google in other areas, this argument seems particularly ridiculous and just seems like Thomson and Rupert Murdoch's sour grapes over the fact that Google is a successful company.

Filed Under: antitrust, eu, europe, google news, indexing, robert thomson, rupert murdoch, search
Companies: google, news corp.

Latest TVEyes Ruling A Mixed Bag: Archiving & Sharing Privately Is Fair Use; Downloading & Sharing Publicly Is Not

from the some-good,-some-bad dept

Last year, we wrote about a big fair use win by TV monitoring company TVEyes -- a service used by governments, news companies and more to record, index and store TV broadcasts and make them searchable. Fox, a company that sometimes relies on fair use itself, sued TVEyes, alleging infringement and a violation of the infamous hot news doctrine. The court ruled pretty unambiguously in favor of fair use (yes, even as TVEyes is storing everything) for most of TVEyes basic operation (searching and indexing), and completely rejected the hot news claim. However, it did leave aside one area for further investigation: the features provided by TVEyes that allows users to save, archive, download, email and share clips as well as the feature for doing a "date-time search" (allowing users to retrieve video from a specific network based on the date and time of the broadcast. For those, the court wanted more evidence before deciding.

It has now ruled on that aspect and it's a partial win for fair use and a partial loss, which may be troubling. The court declared the archiving function to be fair use. But the downloading and "date time search" functions are not fair use. The emailing feature could be fair use, "but only if TVEyes develops and implements adequate protective measures."

Let's look at the details. First, the court decides that the archiving function is fair use because it is integral to TVEyes' overall service:

Democracy works best when public discourse is vibrant and debate thriving. But debate cannot thrive when the message itself (in this case, the broadcast) disappears after airing into an abyss. TVEyes' service allows researchers to study Fox News' coverage of an issue and compare it to other news stations; it allows targets of Fox News commentators to learn what is said about them on the network and respond; it allows other media networks to monitor Fox's coverage in order to criticize it. TVEyes helps promote the free exchange of ideas, and its archiving feature aids that purpose.

Archiving video clips to remain stored beyond 32 days and to facilitate successive reference is integral to TVEyes' service and its transformational purpose of media monitoring. And Fox has not identified any actual or potential market harm arising from archiving. I hold that the archiving function is fair use, complementing TVEyes' searching and indexing functions.

As for emailing and sharing, there the court says it is fair use... if TVEyes includes a few protections:

I agree that to prohibit e-mail sharing would prevent TVEyes users from realizing much of the benefit of its transformative service. For example, members of Congress rely on TVEyes to be made aware of what the media has to say about the issues of the day and about them. But their interns and staffers, not they, sit at computers querying keywords of interest through the TVEyes portal, and then e-mail the results up the chain of command. Without e-mail, the Congressman would be limited to either sharing a computer with his staffer or else having the staffer describe the contents of the clip to the Congressman without showing him the clip. In practice, the former is unrealistic and the latter fails to deliver "the full spectrum of information . . . [including] what was said, [and] how it was said with subtext body language, tone of voice, and facial expression-all crucial aspects of the presentation of, and commentary on, the news."

[....]

However, there is also substantial potential for abuse. In its current incarnation, TVEyes' e-mailing feature cannot discriminate between sharing with a boss and sharing with a friend, nor between sharing for inclusion in a study and sharing a clip for inclusion in a client sales pitch. Fair use cannot be found unless TVEyes develops necessary protections. What limits should be placed on subscribers who share links through social media? What can prevent subscribers from sharing for purposes not protected by § 107? If TVEyes cannot prevent indiscriminate sharing, it risks becoming a substitute for Fox's own website, thereby depriving Fox of advertising revenue.

This seems a bit strange to me, frankly. You still have to be a subscriber to make use of TVEyes, but then you can share clips freely online, which would seem to be a part of a reasonable news function, which should support fair use. But the court seems to think it's only fair use if it's kept "internally" via email.

Moving on to downloading, here, the court is not convinced that this is "integral" to the purpose of the product, citing a bunch of famed copyright cases, including the cases against Napster, ReDigi and MP3.com. Basically "downloading," according to the court, must be infringing, and thus not fair use.

I believe that TVEyes' downloading function goes well beyond TVEyes' transformative services of searching and indexing.... TVEyes is transformative because it allows users to search and monitor television news. Allowing them also to download unlimited clips to keep forever and distribute freely may be an attractive feature but it is not essential. Downloading also is not sufficiently related to the functions that make TVEyes valuable to the public, and poses undue danger to content-owners' copyrights.

The court completely rejects TVEyes argument that downloading is essential for offline use, because the court insists that broadband is basically available anywhere, so it's unlikely anyone will really need the service online.

Finally, there's the "date-time search" feature, which apparently is used in nearly 6% of all TVEyes' searches. Again, the court doesn't buy the fair use argument, saying that the date-time search isn't so much a "search" as it is a way for people to find something they already know is there, and that makes it much closer to the original programming and thus less "transformative."

The feature is not as much a "search" tool as a content delivery tool for users who already know what they seek. In such cases, TVEyes is not so transformational, since users should be able to procure the desired clip from Fox News or its licensing agents, albeit for a fee. Put simply, if a user wants to watch the first half of last Thursday's 0 'Reilly Factor, the Court sees no reason why he should not be asked to buy the DVD/

Unlike TVEyes' core business, its "Date-Time search" function duplicates Fox's existing functionality. Fox's contention that TVEyes' Date-Time search is likely to cannibalize Fox News website traffic and sales by its licensing agents is persuasive.

It does seem a bit worrying when courts get to decide which features of your service are okay and which are not. We generally want markets determining innovative features, rather than judges. And this ruling seems... particularly subjective on a number of points. There is no four factors test being done in any of these. It basically just takes the original ruling that the search and indexing is fair use, and then just focuses on whether these features are "essential" to that service to determine if they, too, are fair use. Again, it's troubling when a court is deciding if a feature that customers clearly like is "essential." That's not how innovation is supposed to work.

This case is still early and I expect that there will be appeals on both sides, so this ruling, by itself, isn't that important yet. What happens next, in terms of how the appeals court rules, is where things will get really interesting.

Filed Under: archiving, downloading, fair use, fox news, indexing, searching, tv
Companies: fox, news corp., tveyes

Chilling Effects On Chilling Effects As DMCA Archive Deletes Self From Google

from the transparency-never dept

Over the weekend, TorrentFreak noted that the website Chilling Effects had apparently removed itself from Google's search index after too many people complained.

This week, however, we were no longer able to do so. The Chilling Effects team decided to remove its entire domain from all search engines, including its homepage and other informational and educational resources.

TorrentFreak asked the site about it and was told it was done in search of "better balance."

“After much internal discussion the Chilling Effects project recently made the decision to remove the site’s notice pages from search engines,” Berkman Center project coordinator Adam Holland informs TF.

“Our recent relaunch of the site has brought it a lot more attention, and as a result, we’re currently thinking through ways to better balance making this information available for valuable study, research, and journalism, while still addressing the concerns of people whose information appears in the database.”

[....]

“As a project, we’ve always worked to strike that balance, for example by removing personally identifying information. Removing notice pages from search engine results is the latest step in that balancing process,” Holland tells us.

“It may or may not prove to be permanent, but for now it’s the step that makes the most sense as we continue to think things through,” he adds.

Meanwhile, Chilling Effects founder, Wendy Seltzer, seems to insist that this was an implementation mistake and that the team never meant to remove the whole domain: So it's a little unclear what happened here. You'd think the folks at the Berkman Center and associated with Chilling Effects know how to properly set up a robots.txt file if they want to just exclude certain pages.

Either way it seems like a massive blow for transparency, and in many ways is a "chilling effect" of its own. It's no secret that many legacy copyright system supporters absolutely hate Chilling Effects and the transparency it brings. Sandra Aistars, of the Copyright Alliance, referred to the site as "repugnant" in Congressional testimony just a few months ago. Yes, providing transparency on censorship is "repugnant." Says a lot about the Copyright Alliance, doesn't it?

Others have made similar statements in the past. A few years ago, a lawyer tried to block Google from forwarding DMCA takedown notices to Chilling Effects, arguing that passing along those notices makes Google "potentially liable for the infringement" in passing on the notices. Others have argued that the takedown notices themselves are subject to copyright and have tried to block them from appearing on Chilling Effects.

The concern, they claim, is twofold: First, the details in the takedown notice often demonstrate where infringing content actually is. That's especially true for notices to Google or Twitter (two of the bigger suppliers of notices to Chilling Effects) who are not hosting the content, but are merely linking to it (i.e. they are "information location tools.") In those cases, the links may get removed from the services in question, but remain on the internet itself. The second concern, as put forth by Aistars, is that people issuing DMCA takedown notices are sensitive little flowers, and publishing the fact that they're trying to take down content opens them up to harassment and abuse.

Neither of these arguments survives much scrutiny. The idea that anyone is trawling through Chilling Effects seeking unauthorized content is fairly unlikely. And, really, if people are, those aren't exactly the kind of people who are then going to turn around and start willfully forking over cash to the legacy entertainment industry for that same content. The Chilling Effects haters, no doubt, would argue that this is why it's important to remove Chilling Effects itself from Google, because people searching on Google might not find the originals, but would then find the takedown notices with links back to the originals. Except, that seems unlikely. First, as has been detailed many times, people looking for unauthorized copies of works tend not to use Google that much, since it's not very good for that purpose, and other tools tend to be much more effective. Second, the kinds of information in a takedown notice itself aren't likely to trigger a high result for someone looking for an unauthorized download. Terms like "free" and "download" are unlikely to be found on such documents.

The other argument -- that being exposed for sending takedowns leads to harassment -- also seems bogus. We've seen little indication that people get that upset about legitimate takedowns. It's the excessive, abusive and censorious takedowns that really seem to concern people. And those are the ones that need transparency the most.

Hopefully, the folks at Chilling Effects rethink this decision and stick by their own stated philosophy of working "to provide as much transparency as possible" about DMCA takedown notices. It would seem that blocking a key search tool from accessing the data goes directly against that principle.

Filed Under: chilling effects, copyright, copyright infringement, dmca, indexing, robots.txt, search, takedowns
Companies: chilling effects, google