Answer in AFP v. Google

Agence France Presse v. Google Inc., Civil Action No. 1:05cv00546 (D.D.C. answer filed May 19, 2005). Following up on my earlier coverage of AFP v. Google over Google News, I have found the answer and put it online.

As is typical, the answer is not especially substantive. The answers and affirmative defenses are fairly boilerplate; they are more thoughtful than many answers (which often just deny everything in a blanket manner) but it’s still fairly non-substantive.

The interesting part is where Google goes on the offensive (starting on page 17), seeking declaratory judgments that (1) “AFP’s headlines and parts of “story leads”…consist, in whole or in substantial part, of mere facts and ideas that are not subject to copyright protection” (Para. 176), (2) Google’s use is lawful (which, in this context, means that Google’s use is fair), and (3) “Google’s utilization [of the AFP content] is licensed or authorized by AFP, implicitly if not explicitly, based inter alia upon AFP’s conduct, knowledge, and contracts with third parties” (Para. 192).

This is an interesting move by Google to convert its defenses (non-copyrightable, fair use, license/authorization) into counterclaims. Many defendants would simply pursue these issues as affirmative defenses rather than undertaking the added complexity of seeking a declaratory judgment.

However, Google has shown a propensity for aggressively seeking declaratory judgments–the preemptive strike against American Blinds comes to mind–so I wonder if there’s a philosophy in the legal department behind the merits of seeking declaratory judgments or positioning as a plaintiff in its cases. Perhaps this move is as simple as Google deciding that it wants to make the AFP a precedent-setting test case for the viability of Google News.

A BNA report indicates that Google filed a brief in the case June 22. If you’ve seen it, I’d be grateful for a copy.