The Great Foot Shooting Party :  How to disappear from the web.

Bernard Lang   (December 20, 2009)
[ licence CC-by-sa ]

This is a new installment on the great foot shooting party on the control of culture and other intangibles. Here is some information on the latest French contribution.

Partial translation of the court decision in the French Google case with some personal comments.


The ruling is interesting in many way, and offers many opportunities for comments. When reading my own, remember that I am not a lawyer, in any country.

I have yet to read most of the comments made by others, whether in France or elsewhere. This translation took some time and effort, however crude the result may be.

Still a quick glance at these other comments shows that there is a lot more to be said, some of which I had noticed and dismissed as less relevant for my purpose here. Many aspects of the ruling are rather strange, including a remark (not translated here) that gives a presumption of ownership against infringers to anyone exploiting a work (publishers in this case, since they could not prove they have digital rights). Such a clause is actually explicit in Swedish law, but I commented elsewhere that in my own uninformed opinion it is in clear contradiction with the European Copyright Directive of 2001, which systematically talks of the exclusive right to authorise or prohibit, thereby making it clear that there are two part to the right, which do not have to be transferred simultaneously. And there are good moral reasons for protecting the exclusivity of the right to prohibit : nothing should stand between a work and its public without explicit mandate from the author. This is the first of all moral rights, before attribution itself, in my opinion.
Furthermore, this should be particularly taken into consideration where digital rights are concerned. While the economics of traditional paper publication imposed commercial channels to cover costs (at least marginal cost), this is no longer true of digital publication and many authors prefer then to have their work freely accessible by the public.

Google invoked the fact that the digitizing was done in the U.S.A. and that therefore the applicable law should be the U.S. law. This did not work, as is explained below.

The translation below is limited by my time and my ability to speak U.S. legalese. Comments and explanations are in red, while the translation is in green. Square brackets have their usual meaning of skipped part or added precision implicit in original text, and curly brackets are used for alternative translation when I am not sure. I have chosen to stay close to the original rather than adapt style. The page numbers refers to the text of the decision.

If you wish to have details on French Intellectual Property Code, "Code de la propriété Intellectuelle", it is available in French, English and Spanish. For the French version, you can have it as it was at any given date. When typing the number of an article to be searched on that site, do not use a dot after the L as is the syntax in the court decision. The interface is pretty dumb on this.

The court found

Bottom of page 14, and page 15):
On the copyright infringement {counterfeiting} suit and the applicable law
Given that the plaintiffs incriminate infringing exploitation by the GOOGLE Inc. company and the GOOGLE France company of the works concerned by the litigation because of the unauthorized digitization of works on which they hold the copyrights, as well as the dissemination of said works on the Internet, without their authorization;

that to oppose the infringement suit the companies GOOGLE Inc. and GOOGLE France invoke the application of American law et claim, in reference to article 5.2 of the Berne Convention that applicable law regarding complex offenses committed on the Internet network would be that of the State on whose territory the litigious acts were committed, unless an especially close proximity with France can be established, which in this case would be impossible since the digitization of concerned works was done in the United States, and consequently only the dispositions of the Copyright Act and the notion of "fair use" must be applicable to the litigation at hand; They assert in addition that the communication of the titles of the concerned works and of the works as short excerpts does meet the conditions imposed by the "short citation exception" authorized by article L122-5-3 of the Code de la Propriété Intellectuelle and that digitization of these works does not constitute unlawful reproduction since the conditions of preservation on GOOGLE's servers do not give to Internet users the ability to display these works on their screens;

that it must be noted that the defendant companies claim the application of American law only for the incriminated {by the plaintiffs} acts of digitizing the works involved;

Yet given that the applicable law for extra contractual responsibility concerning complex offenses is that of the State of the location where the damaging act took place; that this location is understood as much that of the act causing the damage as that of the location where the latter [damage] was realized;
 (the syntax of the French original seems slightly disputable)

that in the present case it is not contested that the litigation is about works from French authors digitized to be accessible by excerpts to French Internet users on the [French] national territory, and besides it should be noted, in addition to the fact the the court in charge is French, that the plaintiff companies are established in France in the case of EDITIONS DU SEUIL, or subsidiaries of a French company in the case of the other two, that similarly the voluntarily intervening parties with authority {capacity?} to defend the interests of French authors and publishers have French nationality, that the GOOGLE France company has its headquarter in France, the the domain name allowing to access the site www.books.google.fr has a ".fr" extension and that this site is written in the French language;

The works were digitized to be accessible to all world users, not just the French ones.  They were also digitized for other purposes, such as preservation by U.S. Libraries, which is legal in both countries, Google being only the agent doing the work with respect to that purpose. So mixing the digitization and the creation of the search index does not seem appropriate.

that it is a consequence of these facts that France is the country which has the closest {tightest?} links with the litigation, which justifies the application of the French law contrary to the claims of the defendants;

There are actually two distinct types of infringements being considered here: the digitization that creates a new copy (for which the defendant claim that U.S. law is applicable), and the actual display of snippets and other information on the Google site. The court chooses to mix the two alleged offenses as one, thereby using the partly French localization of the second offense to localize in France the first. I do not know about legal practice, but this seems quite disputable. If Google had done exactly the same, but not giving access to the search service from France, that would considerably weaken this construction, to the point of inexistence. According to international instruments (e.g., Berne Convention) the law of the country of the protected works is irrelevant for acts committed in another country. The Internet display can possibly be seen as shared between the server and the client countries. But the digitization happened entirely in the U.S.A.
Actually the Berne Convention only state lower limits to the copyright protection given by countries, not upper limits. So a country might decide to grant protections that are not specified in the Berne Convention. But the jurisdiction of countries is limited as described in the Restatement (Third) of Foreign Relations Law of the United States (pointed out to me by James Grimmelman). The fact that the court found it necessary to amalgamate two distinct alleged offenses seems an indication that it might be difficult justifying the application of French legislation to the digitization alone.

It seems to me that many considerations here are simply irrelevant. What happened only in the U.S.A. should be under U.S. law, while what happened in France, or both countries can be under French law. Furthermore, the fact that the site uses .fr as suffix (top level domain) is quite irrelevant. Some French television channel have .tv as suffix, but no one ever dreamed that the applicable law could be that of Tuvalu.

Finally, it is also a bit strange that the court mentions the role of GOOGLE France, since GOOGLE France is later cleared from the case (page 19, section "Sur les responsabilités").
Given that the responsibility of the companies GOOGLE Inc. and GOOGLE France could thus be engaged for the unlawful acts committed through the site "Google Recherche de Livres" [Google Book Search] in the wording of counterfeiting common law {not sure about this literal translation of "droit commun"} of counterfeiting pursuant articles L335-3 and L716-1 of the Code de la Propriété Intellectuelle.

Pages 15-16
On the copyright infringement
Given that in the wording of article L122-4 of the Code de la Propriété Intellectuelle, "any display or reproduction in whole or in part done without the consent of the author or his rightholders or representative is unlawful. The same holds for translation, adaptation or transformation, rearrangement or reproduction par any art or process";

that to dispute unauthorized acts of digitization of works and of dissemination of these works on the site "Google Recherche de Livres", the defendant companies assert that that they are performing no display or reproduction of the litigated works in whole but uniquely the display of excerpts "within the acceptable limits" covered by the short citation exception for information purpose;

that they further state, essentially, that digitization presupposes un act demonstrating the intent of its author [of the digitization] to communicate the work to the public, which would not be presently the case inasmuch as the incriminated site would not let the litigated works be displayed in whole;

Given however that the digitization of a work, a technique actually consisting in the complete scanning of the works in a given digital format, constitutes a reproduction of the work which requires as such, when it is protected, the prior authorization of the author or his rightholders;

that the GOOGLE companies (the court seems tired of repeating names, apparently :-) cannot seriously claim, unless they put in question the very functionality of the system Google Recherche de Livres, that the creation of a digital file would not be in itself an act of reproduction so as not to reproduce in itself the intelligible shape of the work since the fixation resulting from the the digitization of works and their storage in a digital data base is always capable of communicating the work to the public in an indirect way;

IMHO this statement is technically wrong, and I am rather surprised that the Google lawyers were not helped to catch that. It is quite possible that the digitization performed by Google created files that can communicate the work to the public, and I am not sure what the "indirect" qualifier has to do with the issue : it does permit it or it does not, the rest being irrelevant. But the court has no way to know that. I think it is perfectly possible to scan the books so as to produce files that will be usable to organize an index and a book search, without keeping enough information to recreate the original text. However, if the snippet style is always actual page image fragments rather than recreated one, that may be harder to argue, because of the added information about page placement. The maximum size of recognizable sequences may play a role in the analysis. But Google has better technicians than myself to analyze that.

Given besides that the companies GOOGLE Inc. and GOOGLE France are not disputing that the litigated service allows to access, and thus to communicate to the public, the title, the cover and excerpts of the concerned works thus performing unauthorized displaying acts of the concerned works;

that they however invoke the short citation exception permitted by article L122-5 3° to exonerate themselves of any responsibility {liability ?}

But given these [legal] clauses cannot be applied to the case at hand since the concerned covers are communicated in whole to the public, even in reduced format, and that the random character of the choice of excerpts represented denies {belies?} any information purpose as required by article L.122-5 3° of the Code de la Propriété Intellectuelle;

The court argument regarding information purpose is more than debatable. It could well be argued that given the context of use, the information purpose is there since this is the type of information that the reader is expecting, if Google knows its trade. Nothing in the law states that the information should be of a general nature rather than about the work itself, and this is actually quite common. The random character is only with respect to the excerpt when many possible excerpts would fit the information purpose, IMHO. Regarding the covers, I have no idea what legal issue the court is referring to. They do contain little information. If they were considered as graphic works, even reproducing them in part, reduced or not, would be an infringement under French law, so this is not what the court has in mind. Maybe someone will tell me. I am pretty sure the net is filled with this type of infringement, if it is an infringement.

Given that the counterfeiting of patrimonial copyright is thus achieved to the prejudice of the plaintiff societies, of SNE [Syndicat National de l'Édition, a publisher association] and the SGDL [Société des Gens De Lettre : an author association];

that besides the display on the incriminated Internet site of excerpts of works that the GOOGLE Inc. company admits to have have randomly truncated in the shape of torn paper strips damages the integrity of the works authored by the six members of SGDL identified in the context of these proceedings;

Protecting the integrity of the work is part of moral rights in France. Now invoking this with regard to snippets seems to be a clear abuse of the concept. What characterizes the creative essence of the work is not touched at all. When Disney decided that the bad guy in the Hunchback of Notre Dame would be a judge rather than the archdeacon as in the original Hugo novel, that was damaging the integrity of the work - Hugo was likely to have more respect for civil than for religious institutions, unlike Disney - and the film should have been forbidden in France.

Given however that SGDL cannot invoke any infringement of disclosure rights of authors since this right is exhausted by the first disclosure of the work;

This last statement refers to the fact that some authors no longer wanted any publicity for some works which they apparently wanted forgotten, but this was rejected by the court.

Pages 16-18 : Trademark issues
The trademark issue arises from the fact that the trademarks of the plaintiffs were used in the information provided to identify the books in the GBS results. This was totally dismissed by the judge (page 16 bottom and pages 17 and 18), as the use was considered legitimate, and the court even canceled some trademarks of the plaintiffs in specific trademark categories that had never been actually used (page 21 : "- Prononce la déchéance ... "). There are actually 2 trademark issues, probably not really worth detailing, one regarding the brand name, the other the use of that brand name for Internet services. It is the latter that was canceled by the judge, for lack of significant use during 5 years.

Pages 18-19 : Fair trade (?)
The plaintiffs also claimed that Google's action had been detrimental to their business, but were unable to produce any document that would substantiate the claim, which was thus rejected. This is in section "Sur le parasitisme", page 18 and 19. Thus it is clear that the ruling is based on pure principle, and not on actual damage to the plaintiffs. Which should surprise no one.

Page 19 : On responsibilities
GOOGLE France is exonerated.

Pages 19-20 : On Damages
An interesting point is that the plaintiffs asserted that 10,000 books had been infringed ans asked for 15 M euro. Actually they were able to exhibit only 321 books and got 300 K euro. This is more or less proportional, given that several of their secondary (?) claims were actually rejected (like trademark infringement, or business disruption).

A coincidence : 300 K euro is precisely the maximum fine in France for all forms of counterfeiting, which does include copyright infringement.

Pages 20-... : conclusions from the above findings
On those motives, [the court]
[...]

- States that the applicable law for this litigation is the French law.

- States that, by reproducing in whole and by making accessible excerpts of the works that were noted in [...] on June 5 2006 on which the plaintiffs hold the copyright, on the site with url address "http://books.google.fr", without their authorization, the GOOGLE company committed copyright counterfeiting acts to the prejudice of the companies EDITIONS DU SEUIL,u DELACHAUX & NIESTLE ET HARRY N. ABRAMS.

[...]

End of commented translation. The rest is all comments.

Given the above, Google cannot invoke U.S. fair use, which does not exist in European law, and thus loses the case :

So the ruling does concern both the scanning ("reproduisant intégralement" : reproducing in whole) and the snippets ("rendant accessible les extraits" : making accessible excerpts). It is the mixing of both into one complex issue that enabled the court to assert that French law is relevant for the digitization. The case for the snippets seems extremely weak to me.

While the digitization is probably an infringement under French law, I would dispute the infringement under private copying since the only copy of the digitized work was for the corporate person, to the exclusion of any human being, including employees. Only the company computers got to see it. But I was told that private copy is not accepted for corporate persons, even though it is not said explicitly in the law itself. There may be interpretation texts which I do not know, but this is surprising since, AFAIK, private companies are not exempted from the tax on memory supports intended to compensate private copying. Another line of defense could be that one has to prove that an actual copy was created, since it is probably technically possible to scan a book and produce enough data to make an index for searching without ever producing a digitized copy of the book or data from which the book can be reconstructed with certainty. As long as we are splitting hair ...

I am not sure this ruling will hold in higher courts for the reasons given above. My impression after careful reading (forced by the translation work), is that the court did what we call colloquially "botter en touche", an expression originating with the game of rugby (also used in soccer) which may translate as stall, procrastinate or play for time.

The whole thing seems to me very weak. The court seems to have contrived the case to avoid having to use US law (though it has done so before) maybe because there is no available case law to handle the situation regarding the digitization. Google was supposed to create it in the US but decided to settle, and I can understand a French court might feel awkward in such a situation. It is not really for them to initiate new jurisprudence in US law. So they had to justify that the book search service is indeed an infringement by itself, on what I feel to be very weak arguments, and then to mix that with the digitization so as to bring the whole compound under French jurisdiction.

So Google is losing the case, but the sum to be paid is large enough not to seem a joke, and small enough not to really hurt Google.

Remember also that the local pressure, both popular and political, is rather heavy. Furthermore, procrastination was probably wise, because it is clearer and clearer that the solution to these problems does not belong to the courts but to the legislators. Gutenberg's copyright is dying, as should be expected. We should get to work.

Hopefully, the case will be obsolete before it reaches appeal. But I may be expecting too much from ultra-conservative crowds.

Recall I am not a lawyer but only a totally paranoid scientist.

Where do we go from here. Killing the book search service is simply absurd. One of the findings of the court is that it did not hurt the plaintiffs! Nevertheless removal of the indexation of the books concerned has been ordered by the court within 30 days, under penalty of 10 K euro per day (page 21). The court ruling does not specify whether this concerns the existence of the service in France, or in the whole world, nor whether it is to be extended to all books published in France as is allegedly claimed by the plaintiffs. But does the court have jurisdiction outside France?

If the service were available only outside France, that would significantly weaken the court position, though it might be unwise for Google from a PR point of view, especially since they are negotiating other deals in France. On the other hand, Google could also be reproached the removal of useful information without obligation.

Thus it may be that the proper attitude for Google is to make French litterature search available to the whole world, except the French.

I am not sure who is being hurt the most by the court ruling.

I am reminded of an old story (in the late nineties, as I recall), about the TLF (Trésors de la Langue Française), resulting from a costly literature early digitization effort by INALF, supported by the French tax payer. It was accessible at cost to French research institutions. It was sold/given to The University of Chicago (as part of the ARTFL common project), with permission for worldwide access, except France. The university made it available on the web for free, for the whole world except France (because of the contract). And the French research community ended up being the only one having to pay to access the resource created with French money. [from memory ...some details may be inaccurate, but the idea of the story is correct as far as I remember. I could not retrieve it on the net.]

----------

A last point is that much of the press seems hysterical about the case. Many presentations of the case are totally inaccurate. An article that appeared in Le Monde the day before the ruling is a shame for this national daily, full of inaccuracies or downright false information, and clearly heavily biased.

The account on TV was no better. After watching it, my wife was convinced that Google was actually making in copyright books available on the web, which is essentially what people understand from most accounts.

This is not a blog. But comments are welcome to <Bernard.Lang -at- datcha.net>, and may be included if you agree to it.