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European IP Bulletin, Issue 21, April - Copyright

Copyright

3.   Google in AFP Copyright Dispute

The French news agency, Agence France Presse (AFP), has filed a complaint in the US District Court of Columbia alleging that Google has infringed certain of AFP’s copyrights by using AFP’s headlines, news summaries and photographs without permission in its Google News web pages. 

The American Internet search group Google has, in its Google News service, links to online articles and accompanying photographs from some 4500 news outlets.  Courts have previously been quite favourable to websites which link to copyright content as long as such linking has followed certain rules.  Linking has been assumed to direct traffic to websites that provide interesting content.

AFP charges its media clients for the right to republish the content produced by its global network of reporters and editors.  AFP has claimed that Google was using AFP headlines, news summaries and photographs without permission.  When Google failed to comply with AFP’s requests to remove the allegedly infringing content, AFP filed a complaint to the US District Court of Columbia demanding that Google remove all its headlines, news summaries and pictures from Google News.  AFP is seeking $17.5m (£9.4m) in damages and interest from Google and is also seeking to prevent Google from publishing its text and photographs without prior agreement. 

Google is now in the process of removing AFP content from Google News, but it is facing some technical problems.  Google uses an automated system for collecting headlines and content, but most of the AFP content is located on its client’s websites and is not clearly labelled as belonging to AFP.  Google representative Steve Langdon also said that they “allow publishers to opt out of Google News.  Most publishers, however, want to be included in Google News because they believe it is a benefit to them and their readers”. AFP is obviously concerned that it will lose control of its news content, which is the core of its business.

Although Google has agreed to remove the relevant links and content from Google News it is unclear whether AFP will let the matter rest there and this case casts doubt over the future of aggregated news sites.

4.   Russian MP3 Site ‘Legal’

A MP3 website in Russia accused of dealing in unauthorised digital copies of recorded music would not face the courts, as Russian copyright law does not cover digital files.

In February, the International Federation of the Phonographic Industries (IFPI) made a complaint to the Russian authorities, and the Russian Police took action against ALLOFMP3.com or its owners after investigations by the Computer Crimes unit of Moscow City Police. The owners of the website were accused of copyright infringement by offering works protected by copyright for sale without the consent of the copyright owner. ALLOFMP3.com denied the allegations explaining that licences had been obtained to sell the music from the Russia Multimedia and Internet Society.

The MP3 website sold per megabyte (MB) rather than per track. So for example, $5 (US) could purchase 500MB of music, which could equate to approximately 40 MP3 albums or, if downloaded in Windows Media Audio (WMA) format, approximately 80 albums. Many authorised MP3 websites charge in the region of £600 for 80 albums.

IFPI said, however, that the site was "unlicensed to distribute our members” repertoire inside Russia and in all major markets". Prosecutors had decided not to pursue the legal action because Russian copyright laws only cover physical media such as CDs or DVDs and not digital files such as MP3s.

A spokesperson representing the IFPI could neither admit nor deny that action was being taken. She was reported as saying: “However if it is true that the prosecutor has not taken the case this would be very disappointing considering the blatant and large-scale infringement that continues to take place. If these reports are confirmed we will take the case further”.

5.  BPI Victory Against File Sharers

Early last month, the British Phonographic Industry (BPI) announced that, in 23 of the 26 cases it targeted in October 2004, users of peer-to-peer software had agreed to settle the issue through the payment of an average sum of more than £2,000 each. The individuals ranged in age from 22 to 58 and were found to have distributed from a few hundred to many thousands of files.

The decision to settle was a continuation of BPI’s initiative not to seek compensation for the damages occurred. The payment requested would rather serve as a deterrent, aiming for a general decrease in the popularity of peer-to-peer networks, which have been the privileged vehicles for illegal downloading.

In its press releases, BPI has been keen to raise awareness of the fact that not only users of the most popular peer-to-peer networks (i.e. Kazaa, Grokster, Bearshare, etc.) are likely to be caught. In March 2005, the High court issued another order in favour of BPI, requiring six UK based internet service providers to disclose the names and addresses of 31 individuals who had allegedly uploaded a considerable number of music files via peer-to-peer networks.

Legal action with a view to settlement is becoming one of the most popular instruments to fight internet piracy in the music market. BPI has provided figures which show that the use of “the once most-popular file sharing network Fast Track - on which KaZaA runs - has plummeted, with the number of users in January 2005 down 45% from its peak in April 2003. The decline of KaZaA is apparently a reflection of what is happening to most servers of its type.

BPI’s commitment to fight illegal downloading demonstrates that European institutions are presently attentive to music content preservation and development of digital distribution of music. Last month we reported on the Italian DJ sanctioned under Italian copyright laws for his use of MP3 files.  In order to preserve the prosperity of the creativity markets, it is fair to say that the aggressive US strategy has now also been fully adopted in Europe.

In conclusion, it is worth noting that both American and European legal experts are now waiting to see how the Grokster case will be resolved. The impact of such a decision, possibly establishing secondary liability for software producers and distributors of peer-to-peer programmes, would certainly constitute a new resource for right holders’ legal actions, but it would also radically alter the understanding of copyright legislation at the national and international level.

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