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What Asterix And Google Have in Common
Sylvie Fodor, Executive Director
Byby Sylvie FodorOn 18 December 2009 a French court found Google guilty of "counterfeiting" and violating copyright of French publisher La Martinière by digitizing hundreds of books within their Google Book Search programme.
Google has to pay €300,000 ($430,000) in damages and interest to the plaintiff and stop digitizing and putting the books online. http://www.legipresse.com/newsletter/bandeaux/000001/000084.pdf
The importance of this ruling cannot be overestimated.
French law is very protective of copyright holders: there is therefore little surprise in the outcome of the case since the Judge used French law. The key point though is that the Judge used French law at all! Two months before, the exact same Court had ruled otherwise: in a very similar case opposing Google Images and French collecting society for visual artists, SAIF (http://www.legalis.net/jurisprudence-decision.php3?id_article=2776), the court ruled that "Fair Use" and not French Law was applicable - and deemed the showing of images as thumbnails in the search engine's browser as "fair use".
Between these two decisions lie Google Book Search and the Google Book Settlement. Digitization programmes of books, not thumbnail images, are a subject of public interest and of cultural identity.
In September 2009, the hearing organised by the European Commission was flocked by hundreds of delegates from all EU countries. In October 2009, German Chancellor Angela Merkel took position in a very clear statement : "We reject the scanning of books without any copyright protection - like Google is doing." In December 2009, French president, Nicolas Sarkozy, unveiled an ambitious spending plan pushing for a broader public digitisation programme with € 750million earmarked to ensure that French national treasures will be digitised.
For rightsholders in France - but not only in France - the decision of 18 December is a relief. First, it is of course easier (and cheaper) to sue at home if national law is applied rather than foreign law. In the case at hand, the judge rightly noted that "the majority" of "points of interests" is located in France, justifying the use of French Law. More importantly, the decision establishes a level playing field between parties in the big battle of mass digitization: the Web giant and the smaller providers of copyrighted content. Google has a yearly turnover of 21 billion dollars while the 12 largest French publishers together only 5 billion. "I was the only one who had the guts to sue Google" boasted Hervé de La Martinière in the French Media and some blogs depicted him as Asterix the indomitable Gaul crushing a Roman army of colourful Google soldiers.
Whether Google will finally win the day remains to be seen... The magic
potion has still not been brewed. However, thanks to this decision,
Google will be forced back to the table of negotiations and this is a
good thing.
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Up-date: second round
This is an up-date on this article.
Google has gone into appeal. The decision is expected for March 23rd.
Google has refused to publish the condemnation of the court on their website, saying that this decision throws a negative light on Google Book!