April 19, 2021

Volume XI, Number 109

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April 16, 2021

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The Journalism Competition and Preservation Act of 2021: Conflicts between Social, Political and Legal Aspects of Google’s Use of Copyrighted News Material

Congress is currently debating a bill that would give news media outlets permission to band together to negotiate with Google and Facebook without running afoul of the antitrust laws. The Journalism Competition and Preservation Act of 2021 is designed to give news media leverage to negotiate better financial terms with Google and Facebook. This type of bill has been percolating for years in response to public and congressional scrutiny of Google and Facebook, both of which publish headlines, snippets and thumbnail photographs of news articles and photographs from the media outlets. 

Senator John Neely Kennedy (R-LA), one of the bill’s sponsors, explained the reasoning behind the bill as follows: “At the heart of this bill is helping newspapers survive amid shrinking circulations and massive layoffs. Google and Facebook now control the news kingdom. They’ve pitted themselves against newspapers in a David-and-Goliath battle in which newspapers don’t have a stone to throw much less a slingshot to put it in. The readers are the true losers as newsrooms empty out across this country.” See U.S. Sens. Kennedy, Klobuchar File Legislation to Protect Newspapers from Social Media Giants

This statement indicates that the motivation behind the bill is largely social and political; the legality of Google and Facebook’s use of news is not a motivating factor. But what is the legal landscape surrounding such use? How have these companies been able to use the headlines, snippets and thumbnails until now?

Google and Facebook Link to News from Media Outlets

Google publishes headlines, thumbnail photographs and snippets in two places. First, on google.com, a search for “snowstorm news,” for example, brings up a row of three hits, each consisting of a headline and a thumbnail photo that links to each source’s webpage. Underneath this row with photographs is a list of further hits, each consisting of a headline and the opening sentence or so of an article (i.e., a “snippet”) that links to the source’s webpage. 

Second, Google has a site at news.google.com that also links to articles from news sources, but these links are organized by topic, such as weather, politics or sports. Some links include thumbnail photographs and some include snippets; all include the headline. 

Facebook also publishes headlines, snippets and photographs in two ways. First, a news outlet can publish its own posts, which are then sent to its followers’ feeds. Second, a user can repost a post from a news source. 

Google and Facebook’s use of headlines, snippets and thumbnail photographs brings up interesting copyright issues. This article focuses on Google’s uses, both as a search engine and as a news aggregator. Facebook’s uses implicate many of the same issues, but differ in some significant ways such that not every argument that works for Google is relevant to Facebook, and vice versa

Some, including the news media and the bill’s supporters, say Google’s use of snippets and thumbnails violates the copyright laws and diverts traffic from the media outlet’s own websites. For its part, Google argues that the thumbnails and snippets, far from diverting viewers from the news media, actually increase traffic to the media websites by displaying just enough of the news to whet viewers’ appetites for the whole story, which is found only on the media websites. In other words, Google maintains that its headlines, snippets and thumbnails are not a substitute for the real thing, which sounds a lot like a fair use argument. 

Is Google’s Use of Snippets and Thumbnails Fair Use?

Google has publicly stated that its use of news snippets and thumbnails is fair use and therefore not a copyright violation. In a June 26, 2020, Google News Initiative blog post, Google linked to four cases, each of which found fair use in the display or copying of snippets and/or thumbnails when those were displayed as results from an online search. 

In Kelly v. Arriba Soft Corp., 336 F.3d 811, 818 (9th Cir. 2003), the Ninth Circuit held that an online search engine’s display of results as thumbnail photographs is fair use because, inter alia, the use was transformative: the images were smaller, lower resolution than the originals; there was no aesthetic purpose to the use whereas the original use was to “portray scenes from the American West in an aesthetic manner”; and the search engine “functions as a tool to help index and improve access to images on the internet and their related web sites.” The use also was not deemed a substitute for the original because “the thumbnails are of much lower-resolution than the originals; any enlargement results in a significant loss of clarity of the image, making them inappropriate as display material.” 

Next, in Field v. Google, Inc., 412 F.Supp 2d 1106, 1118-19 (D.Nev. 2006), the U.S. District Court for the District of Nevada held that Google’s storage of web pages in a temporary repository called a “cache” to enable its search function is fair use. When a page turns up as a search result, Google provides a link to the current page, and a snap-shot of the “cached” page as it looked the last time that Google’s web crawler visited that page. 

The court found that making the cached copy was fair use because:

  • Google’s functionality enabled users to access content when the original page was inaccessible – and was therefore not a replacement for the original

  • The cached links allowed users to detect changes that were made to a web page over time – another function that was not a replacement for the original

  • The cached copy helped users more “quickly find and access the information they are searching for” – a function that also was not available in the original

  • A banner at the top of a cached link explained that the link was only to a snap-shot of the current page and there also was a link to the current page, enabling users to visit the current page if they so chose

  • Google ensured that any site owner can disable the cache function on their pages. 

In sum, “Because Google serves different and socially important purposes in offering access to copyrighted works through ‘cached’ links and does not merely supersede the objectives of the original creation,” Google’s use was found by the court to be transformative and fair use. 

Next, Google cited to Perfect 10 v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007), which held that Google’s display of thumbnail photographs as search results is fair use. The court relied on Kelly v. Ariba to find that Google’s use of the thumbnails was “highly transformative … in other words, a search engine puts images in a different context so that they are transformed into a new creation.” 

Last, the Ninth Circuit held that Google’s digital copying and indexing of full books that can be searched online by key words was fair use. Authors Guild v. Google, Inc., 804 F.3d 202 (2014). The court explained that Google’s use was “highly transformative” because “the purpose of Google’s copying is to make available significant information about those books, permitting a searcher to identify those that contain a word or term of interest, as well as those that do not include a reference to it.” 

These cases are strong precedent that Google’s use of snippets and thumbnails is fair use. But there is precedent the other way, too. For example, in 1985, the Supreme Court held in Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985) that a use is not fair use when it acts as a substitute for the original by (1) publishing before the original is published and (2) publishing the “heart” or the “most interesting and moving parts” of a work. The Court quoted Justice Story: “It is clear that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such use will be deemed in law a piracy.” Arguably, the “heart” of a news story may be present in its headline, first sentence and accompanying photograph, which could indicate that Google’s use of snippets and thumbnails for news is not fair use. 

Thus, it is far from certain that Google would win a copyright suit brought by news media on fair use grounds. Google settled a case on this exact issue before the court had a chance to rule on its fair use defense in 2005. Thus, this issue may be ripe for further court review. 

The Test Case

In 2005, Agence France Presse (AFP) brought a copyright infringement suit against Google based on Google’s use of the news agency’s headlines, photographs and lead sentence on its news.google.com website. Agence France Presse v. Google No. 05-00546 (D.D.C) (2005). The case ended in a settlement that, as widely reported, included Google paying a license fee to AFP to link to its news stories. However, before settlement, the parties filed a few substantive documents that give us insight into the issues that would be contested in a case like this. 

In its complaint, AFP described its headlines, lead sentences and thumbnails as “qualitatively the most important aspects of a story” (Amended Complaint, D.I. 4 at ¶ 18), clearly laying the groundwork for an argument based on Harper & Row that fair use cannot apply because the accused use took the “heart” of the copyrighted work. AFP also set up its fair use argument by stating that the use of the materials “is not transformative in any way,” and that Google used the material “in the exact same manner” that it is used by those who actually pay for the content. 

Google’s answer included many defenses, including fair use. Google argued that it transforms headlines, first sentences and photographs “by creating links”; “by categorizing them by subject matter and creating an index of news stories and thumbnail images that users may use to find and select web sites containing information relevant to them”; “by indexing them by subject matter”; “by informing the reader of the source of the story”; “by organizing and ranking them using proprietary Google algorithms developed to reflect the collective wisdom of the internet regarding what constitutes current news of note”; and “by creating a small, very low resolution thumbnail image of fewer than 100 pixels by 100 pixels to serve as a link to the source web site.” 

But Google had other arguments, too. To name just a few, Google argued that headlines and lead sentences are not copyrightable subject matter as they are too short and factual; that the Digital Millennium Copyright Act (DMCA) protects it from copyright infringement because its service merely acts as a pointer to the full news stories; and that AFP granted an implied license to Google by not using web tools that would act like an “opt-out” to Google’s web crawler and would prevent Google from linking to AFP’s content. 

Google also pled facts regarding the technical way that the news headlines and photographs are displayed on its site. The photos and headlines are not copied or stored on Google servers; instead, Google “embeds” links to the headlines and stories on Google’s pages, but these links point to the news media’s own website. The Ninth Circuit has held that Google’s embedded content that is not hosted by, copied to or stored on Google’s servers does not infringe any right under copyright, in what it terms the “server test.” Perfect 10 v. Amazon.com. The server test was created in 2007, after Google settled its suit with AFP, but based on the timing and based on Google’s pled facts, Google’s defense in AFP likely would have included an argument that embedding links does not violate the copyright laws. Today, as these authors have recently discussed, the Ninth Circuit’s server test is still viable in the Ninth Circuit, but has been criticized and rejected by other courts, notably, the District Court for the Southern District of New York. (See “Embedding in a State of Flux: New York Courts Challenge Decade Old Reasoning from the Ninth Circuit.”) 

While Google pled many defenses, it still decided to settle the case before the judge was able to rule on fair use and other defenses. AFP also decided to settle, thus leaving the issue unresolved. 

Conclusion

Google is under fire socially and politically regarding its publication of news content. (See “Australia passes law requiring Facebook and Google to pay for news content.”) However, the legal aspects of Google’s use of news media’s material are far from clear. Whether by fair use or some other legal theory, it is possible that Google’s use is permitted by law, but there are no court decisions on this precise topic. It will be interesting to watch how this develops and how it may impact other news reporting or other content aggregating services.

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© 2021 Wilson ElserNational Law Review, Volume XI, Number 81
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Adam R. Bialek, Wilson Elser, IP Lawyer, Patent Litigator, New York
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