When It Comes to Dealing With the French, Google has “Beaucoup Problèmes.” Add One More -- the French News Agency AFP Sues In US Federal Court

Philip Stone March 21, 2005

Google has suffered several setbacks against its trademark advertising policies in French court decisions, including losing a recent appeals court ruling, but now AFP, the French news agency, has sued in a US court to stop the search engine from displaying its news and photographs within its news section without permission.
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AFP wants Google to stop displaying its copyright material without permission (read: payment) and is suing in US District Court in Washington for $17.5 million (in Google parlance: petty cash). But the suit actually brings to the front burner the issue of whether there is copyright infringement if one picks up partial news items and/or photographs from a web site and displays them on another site even if full credit is given to the original source.

Google spokesman Steve Langdon says that Google’s policy is to allow publishers to opt out of having their information within Google News if they wish, “But most publishers want to be included because they believe it is of benefit to them and their readers.”  But AFP said in its suit it had asked Google to cease and desist several times but the search engine had not complied.

There may be something more to all of this than meets the eye.  On purely a technical basis AFP could add some code to its robots.txt file on its web server and that would stop Google from crawling for its content.  As it is now, Google picks up to the first 40 words of a story and when the reader clicks on the story to read more they are sent directly to the AFP site – which helps AFP with its visitor numbers. A click on a AFP thumbnail picture takes the reader also to the AFP site.

But AFP sells its news to some 600 web sites and it doesn’t want any of its news picked up, at least not for free. News agencies are becoming more and more protective of their online material and as a news wholesaler the last thing AFP needs is for Google to make that same information available to the whole world for free.

The only real US federal case law applying to this was in 2002 when a federal appeals court ruled that while publishing full-sized photos obtained via a robot crawl or such was a copyright violation, displaying those pictures in the small “thumbnail” size was not.

Perfect 10, a Los Angeles nude photography publisher, sued Google a few months ago in federal court in a suit charging the search engine was publishing its pictures without permission – the very pictures Perfect 10 was trying to earn money from publishing on its web site and its magazine.  The suit is still pending.

Back in France itself, Google recently lost an appeals court ruling on trademark infringement, this one brought by Louis Vuitton Malletier. The Paris appeals court upheld a €200,000 fine for trademark counterfeiting, unfair competition, and misleading advertising. Google has lost other similar cases in the French courts brought by Le Meridien Hotels and by travel agencies.

The suits took issue with Google’s Adwords system that allows any advertiser to buy search-related keywords, including branded and trademarked terms, and use them for their own advertising purposes.

Thus a maker of counterfeit Lous Vuitton baggage could buy “Louis Vuiitton” search words from Google for use in its search-related Google advertisement to promote its web site selling counterfeit look-alike baggage. French courts have continually ruled that selling trademarks in such a way is illegal.

US courts have gone both ways but lean towards trademark protection if the case is made that sale of a trademarked or branded name to a third party causes considerable consumer confusion. A court ruled favorably for Playboy when “playboy” and “playmate” search words were sold, but a court ruled against Geico, a car insurance company, saying it had not sufficiently proven that Google’s sale of its trademark name to a third party for search-related advertising had caused much consumer confusion.

Search-related advertising has become Google’s largest business, worth more than $1 billion annually and it is forecast to grow by about 20% annually. For that reason the company, in the US at least, is taking an even tougher line in being able to sell trademarked and branded names to the highest bidder.  How Google takes into account the French rulings for its global activities is yet to be seen.

Author’s Note: While this site does not participate in Google’s AdWords program it does utilize its AdSense program that places advertising automatically on our pages. You are cordially invited to visit our advertisers as often as possible!

ftm Follow Up & Comments

Google/AFP Make Peace - April 10, 2007

It took two years of court wrangling and behind the scenes negotiating, but AFP and Google have finally made peace. The French news agency has signed an immediate licensing agreeent that allows Google to publish its news content. That move follows a similar one by the AP last August.

Apparently Google is coming out soon with a brand new news product and the wraps are still being kept very much on it for the time being. But the AP and AFP are apparently going to be major sources within that product.

“We signed a license agreement that will enable Google to use AFP’s newswire content in all Google services as well as in its new products that are coming up,” said AFP lawyer Joshua Kaufman.

AFP had sued for $17.5 million. That suit is now moot but AFP, one must imagine, expects to recoup that money and legal fees from its new licensing deal.

What’s happening with the AFP suit against Google? - July 24, 2006

A Google search the other day brought up an interesting response – an AFP story from the Standard newspaper in Hong Kong. And then another search brought up an AFP story from the Hindustan Times. Strange since Google had said it was removing AFP stories from its news site following AFP’s suit in US Federal Court in March, 2005, seeking damages for displaying AFP stories without any contractual agreement.

One would have thought that Google, the world’s leader in search terms, could figure out a way to ban from its system those AFP stories appearing in newspapers, but it appears not. So, that naturally brings up the question of how’s the lawsuit going?

ftm had wanted to ask AFP CEO Piertre Louette that question in Moscow when he appeared on the same stage as a Google representative to discuss news agencies, but it wasn’t to be. But ftm did ask a colleague who had met Louette a couple of days before and had asked that very question and was told the lawsuit was slowly but surely working its ways through various stages of the US federal court system, and that AFP had every intention to see it through to the end.