Initial Assessment of AFP v. Google

Lots of buzz about AFP’s lawsuit against Google for displaying AFP’s headlines and photos in Google News. Personally, I think Google News is great, and I use it often. However, we can’t let our love for Google blind us to the risks of this lawsuit. I haven’t yet seen the complaint (if anyone has a copy, please advise), but based on the news reports, here’s my top reasons why Google could lose this case:

1. Copyright is a strict liability tort. If Google commits the infringing acts, it is presumptively liable regardless of its knowledge or intent.

2. Google cannot easily avoid future infringements. The Googlebot indiscriminately collects content from the Internet. It doesn’t matter if Google blocks the AFP website—it could pick up the content from one of AFP’s licensees, and that would be just as infringing. We saw this in the Kelly v. Arriba case over the Ditto search engine. Ditto blocked the plaintiff’s website but was unable to avoid picking up the content from plaintiff’s licensees. A judge may be sympathetic to Google’s robotic collection scheme (like the judges were in the Kelly case), or a judge may be angered by the fact that AFP cannot prevent Google from continuously and repeatedly violating AFP’s rights.

An aside: Finfacts suggests that AFP could require its licensees to block the Googlebot as well. This is a logical argument, but completely impractical. I’ve tried to insert these clauses in contracts before, and they go over like a lead balloon. The licensee wants to get traffic to their website, and losing search traffic as a precondition of getting one (of many) data feeds is simply not smart business for most licensees.

3. Individual headlines generally are not copyrightable, but photos are. The Kelly v. Arriba case found that thumbnail versions of photos could be fair use, but I wouldn’t categorize that opinion as rock-solid. Meanwhile, headlines can be protected under a “hot news misappropriation” doctrine, and collections of headlines can be protected under copyright law.

4. Google is freely acquiring content that AFP makes available via a licensing scheme. This existing licensing scheme may undermine a fair use defense.

I’m not predicting a Google loss, but I can predict that we will see a complex and high-stakes case.

Reuters story about the case. More discussion about the case from Marty Schwimmer, Stefanie Olsen and John Battelle.

UPDATE: Thanks to Marty Schwimmer, the complaint is here.

UPDATE 2: I’ve added more thoughts here.