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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    ChurchHatesTucker (profile), Jul 28th, 2009 @ 10:15am

    Brilliant!

    Because Danish wasn't obscure enough, we're now establishing monopolies on sentences! Tak!(R)

     

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  2.  
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    Ilfar, Jul 28th, 2009 @ 10:39am

    Ah well...

    At least I'll never have to worry about going over that limit when quoting a teenager :P

     

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  3.  
    identicon
    Mike, Jul 28th, 2009 @ 10:40am

    Wow!

    I wrote down an address yesterday on a sheet of paper after looking it up in the phone book. Now, ignoring the fact that I used the paper copy of the yellow pages (those really do still exist) I think I may have infringed on Yellow Book's copywright.

    Would I have been better off tearing out the page and bringing it with me?

     

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  4.  
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    ChurchHatesTucker (profile), Jul 28th, 2009 @ 10:44am

    Re: Wow!

    "Would I have been better off tearing out the page and bringing it with me?"

    Of course! Because then you wouldn't be copying!

     

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  5.  
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    TheStupidOne, Jul 28th, 2009 @ 10:51am

    Re: Re: Wow!

    But you might be charged with destruction of property. The yellow pages are only licensed to you.

     

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  6.  
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    David Johnson (profile), Jul 28th, 2009 @ 10:59am

    Re: Wow!

    no infringement; in the US you cannot copyright facts.

     

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  7.  
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    Anonymous Coward, Jul 28th, 2009 @ 11:10am

    Re: Re: Wow!

    Well... you think you can't copywrite facts. But that isn't stopping some people from thinking you can *cough* AP *cough*

     

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  8.  
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    Anonymous Coward, Jul 28th, 2009 @ 11:16am

    We really, really, really need to hang some (digitally illiterate) judges.

     

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  9.  
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    Tristin, Jul 28th, 2009 @ 11:30am

    This post is copyright (c) property of Tristin (TM)

    If any of you quote more than 10 words of this post than I will take you to court for violating my copyright. Consider yourself warned. It is vital to me that I get the protection I so badly need from comment pirates that are destroying the comment industry.

    I am open to the possibility of providing you a license to use my intellectual property, however. Should you desire to obtain a license, I accept PayPal, Google Payments, and cash. Serious offers only, please. Nothing less than $5,000 will be considered. If you have received a notice of infringement, a settlement payment of $15,000 may prevent further legal action.

    Thank you for using my comment services. Have a nice day.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jul 28th, 2009 @ 11:38am

    Re: This post is copyright (c) property of Tristin (TM)

    The numbers of words perhaps isn't the relevant part here, it's more to do with conveying the thought or idea in the text. If 11 words is enough to convey the meaning of much of the text, then the judge feels it may be infringing. Heck, in theory, you could infringe on three words "michael jackson dead", if you want to look at it that way.

     

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  11.  
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    Anonymous Coward, Jul 28th, 2009 @ 11:48am

    Looks like Techdirt just violated the court's copyright by quoting the court's finding.

     

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  12.  
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    Anonymous Coward, Jul 28th, 2009 @ 11:59am

    Re:

    Except that the court ruling isn't copyright.

     

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  13.  
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    Fred McTaker (profile), Jul 28th, 2009 @ 12:02pm

    Shredder?

    Does the judge in this case not own a shredder? A dog? A birdcage? Has he never burned paper, even accidentally? Calling a print-out any more permanent than any other medium is luddite beyond the last two centuries. I'm sure even the original clog-throwers would hear this and say "wha?"

    Beyond the whole permanent paper argument, all data is as transient as the user wants it to be. Keeping cache history forever, or taking a digital photograph of everything you are ever interested in, doesn't sound so crazy when drives can be had for about a dime per GB. I don't see how that argument has anything to do with copyright infringement.

    In this case, why shouldn't a small clipping put in the context of several other clippings from different sources, with some small aspect relating them (like keywords), constitute fair uses like commentary or transformation? Doesn't changing the context like this alter the relative meaning, even if the clips are gathered by automata? Even for just one clip alone, doesn't reducing the work to a single snippet based on keywords fundamentally change the meaning to revolve around those keywords rather than the original author intent? For example, a thorough report about high fructose corn syrup could easily turn into a snippet of corporate history if the article is constrained to just those sentences containing the keyphrase "Coca Cola". It's scary how little selective editing is required to transform a work's meaning. Politicians use this form of transformative editing all the time when quoting each other. Idiot theologians do the same thing all the time when quoting their particular Bible.

     

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  14.  
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    Anonymous Coward, Jul 28th, 2009 @ 12:12pm

    Re: Re:

    Except that the court ruling isn't copyright.

    It wouldn't be in the US, but I'm not so sure about Europe. I know some countries certainly do have a notion of gov't copyrights.

     

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  15.  
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    Anonymous Coward, Jul 28th, 2009 @ 12:24pm

    In Related News...

    I bet AP's board members just pissed all over themselves in excitement.

     

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  16.  
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    Hephaestus (profile), Jul 28th, 2009 @ 12:29pm

    did anyone read the line ....

    "over its reproduction of 11-word snippets of news for sale to clients."

    The key part of the above statement is "for Sale" they are taking small snippets and selling a service to resending them I see the judges problem.

    Also the judge skirted the issue by stating "clippings service's copying could be unlawful." note the word "Could"

    If this was a free service I dont think there would be a problem.



    On a gut feel level this is yet another small nail in the coffin on the way to outrage and senatorial hearings on fair use and reworking copyright.... which of course will have media industry execs and lobbyists drooling ....

     

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  17.  
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    Anonymous Coward, Jul 28th, 2009 @ 12:36pm

    Fairly simple.

    Company X sues google for copyright infringement over search result snippets. Google then removes company x from it's search system.

    Company x suffers the wrath of the internet savvy community coupled with the not-particularly-internet-savvy community not being able to find them using google, and dies, or comes begging back to google.

    Search engines hold the majority of the power here. While companies can (and do) advertise their websites directly, either on other websites, radio, TV or billboards, people forget specific URLs quite quickly and even if they've *just* seen an advert on the tv, will then go to google and search the company name rather than bothering to remember the URL. Once some companies/organisations (probably the AP to be honest) start pushing this issue, they're going to be disappeared from search engines by their own request, and then they'll suffer for it.

     

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  18.  
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    Curious Bystander, Jul 28th, 2009 @ 12:40pm

    SE

    Outstanding! It just never ceases to amaze me how pitiful the "smart" people are.

     

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  19.  
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    The Infamous Joe (profile), Jul 28th, 2009 @ 12:55pm

    Re:

    Ah, you would do so well in a world that made sense.

    Allow me to fix that for you:

    Company X's lobbyists pu$h through a new law that makes search engines pay a flat license fee to a collection agency per site listed. The collect agency then "finds" the each site's owner and sends them a check. There is no way to opt out of this system. This collection agency is run by board members for major news organizations, who, oddly enough, make the lion's share of money from this fee.

    There, that's better.

     

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  20.  
    identicon
    lawgeeknz, Jul 28th, 2009 @ 2:51pm

    Google books

    Whether or not it is fair use in the US, this will certainly hearten those in Europe and elsewhere claiming that the Google book settlement gives Google a significant advantage compared to what it had under general law.

    It is a strange irony though that various jurisdictions' differing strengths of copyright law in have resulted in Google deciding in the settlement that even though international authors' works are included in the 1000s Google is copying per day, it will not be making those available to international audiences.

    Thats the fascinating and challenging thing about copyright - pull one thread of the web here and a fly gets caught over there.

     

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  21.  
    identicon
    Anonymous Coward, Jul 28th, 2009 @ 2:54pm

    Re: Re:

    Search engines aren't obligated to list sites are they? They can filter what they want, surely?

    That's not a sarcastic rebuttal of your point btw, it's an actual question. I was always under the assumption that search engines can include / exclude whatever sites they want for whatever reasons they want, since they're a private company, and the main impetus for not doing so was that their reputation would suffer if they did.

     

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  22.  
    identicon
    Glenn, Jul 28th, 2009 @ 5:50pm

    Really...

    Are European courts now proving on a weekly basis (at least) that they're incredibly stupid? I think they must be watching too much American TV over there.

     

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  23.  
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    Paul Hobbs (profile), Jul 28th, 2009 @ 6:04pm

    Re: This post is copyright (c) property of Tristin (TM)

    "If any of you quote more than 10 words of this post than I will take you to court for violating my copyright. Consider yourself warned. It is vital to me that I get the protection I so badly need from comment pirates that are destroying the comment industry."

    Come get me.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Tristin, Jul 28th, 2009 @ 8:03pm

    Re: Re: This post is copyright (c) property of Tristin (TM)

    "'If any of you quote more than 10 words of this post than I will take you to court for violating my copyright. Consider yourself warned. It is vital to me that I get the protection I so badly need from comment pirates that are destroying the comment industry.'

    Come get me."

    I'd write you a legal nastygram, but I couldn't do the funny little things justice. I just don't have that level of evil and delusion inside of me. Why don't you just send me $100, I'll gloat about what a victory this was for creative types all across the universe, and we'll call it a day.

    On a similar note, if any other commentors need legal and licensing representation, Tristin (TM) is accepting applications. All licensing fees go directly to the commentors, of course, after a 50% fee. Allow 6-8 years for delivery of funds. All comments not licensed elsewhere will be assumed to be represented by Tristin (TM).

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Jul 28th, 2009 @ 10:41pm

    Re: Appeal?

    Oops, you just violated the copyright of techdirt.com. That will be $5000 grand or three easy payments of $2500. :)

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    rubken (profile), Jul 29th, 2009 @ 3:24am

    Re: Wow!

    Ah, but who owns the address? Is Yellow Pages violating the house owners intellectual property by printing the address, does the Post Office own it or the Home Office?

     

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  27.  
    icon
    Alex Porteous (profile), Jul 29th, 2009 @ 4:58am

    Every day I see yet more proof that the world is full of fools.

    Its becoming incredibly frustrating watching companies and individuals trying to get something for nothing. They are all after the quick buck now at the likely expense of more bucks later. This short termism seems to be endemic in business and government everywhere.

     

    reply to this | link to this | view in thread ]

  28.  
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    Chris-Mouse (profile), Jul 29th, 2009 @ 5:35am

    Did anybody actually read the article?

    The court didn't rule that copying 11 words was infringement. It said it might be, but didn't look into the question.
    What it did say is that when you distribute copies printed on paper, you no longer qualify for the transient works exemption in the copyright law. That shouldn't be a surprise to anyone, since ink on paper is widely regarded as a permanent medium for data storage.

     

    reply to this | link to this | view in thread ]

  29.  
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    Paul Hobbs (profile), Jul 29th, 2009 @ 6:32am

    Re: This post is copyright (c) property of Tristin (TM)

    The cheque is in the mail.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Jul 29th, 2009 @ 9:50am

    Re: Did anybody actually read the article?

    Did anybody actually read the article?
    Yes. Did you?

    The court didn't rule that copying 11 words was infringement. It said it might be, but didn't look into the question.
    From the linked article:
    Though the Court conceded that "words as such do not…constitute elements covered by the protection", it said that copyright law would apply to extracts even if they contained just 11 words.

    Well, that certainly sounds to me like they looked into whether or not 11 words could infringe and found that they could, although single words do not.

     

    reply to this | link to this | view in thread ]

  31.  
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    Chris-Mouse (profile), Jul 29th, 2009 @ 12:40pm

    Re: Re: Did anybody actually read the article?

    The ECJ said that while some parts of Infopaq's processing could be called transient, as soon as it had printed out the 11 words on to paper the copying became too permanent to qualify for the law's exception.
    "The possibility may not be ruled out that certain isolated sentences, or even certain parts of sentences in the text in question, may be suitable for conveying to the reader the originality of a publication such as a newspaper article, by communicating to that reader an element which is, in itself, the expression of the intellectual creation of the author of that article,"

    This is a preliminary ruling on only two points of law, First, does this fall under the transient exemptions, and is it possible that a snippet of eleven words can be protected by copyright. The first answer is no. The printing process makes the copy no longer transient. The second ruling is maybe. At this point the court cannot say that such a short excerpt is not protected, but cannot say that it is protected either. There is still a lot more to be done before the court can rule on whether this, or any, eleven word snippet can be declared infringing.

     

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  32.  
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    Anonymous Coward, Jul 29th, 2009 @ 1:17pm

    damn

     

    reply to this | link to this | view in thread ]

  33.  
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    Anonymous Coward, Jul 30th, 2009 @ 1:32pm

    Re: Re: Re: Did anybody actually read the article?

    At this point the court cannot say that such a short excerpt is not protected, but cannot say that it is protected either.

    Which agrees with "...they looked into whether or not 11 words could infringe and found that they could, although single words do not."

    The important point is that they said that 11 words *could* be infringement, which is what the claim was, not your straw man argument that it necessarily was.

     

    reply to this | link to this | view in thread ]


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