In courtrooms and government offices across the world, a drama is unfolding on the future of the Internet. At issue is whether the rules that protect consumers and creators in the off-line world–especially against monopoly abuse and theft–apply with equal force online. At stake is whether consumers can look forward to a future filled with vibrant choice and opportunity online, or whether they will see fewer choices, less creativity, and less innovation when they search the Web.
Fortunately, the last weeks of May offered two cautious signs of hope. They occurred on different continents and in vastly different settings. But they shared a common goal of protecting those whose efforts make the Internet exciting, informative, and entertaining from the ravages of unbridled power.
The first event took place on the last day of May in a federal courtroom in New York. Judge Denny Chin, who is presiding over litigation in which Google stands accused of illegally copying millions of books, held that associations representing authors, photographers, and graphical artists could represent their members in the case. Many of the artists whose works Google copied without permission are members of CEPIC, the world’s leading organization representing picture agencies and photo libraries in Europe and around the world and an estimation of 150.000 photographers. From the beginning, CEPIC and its members expressed a willingness to license our works to Google, so long as Google respects our copyrights and provides fair compensation for the use of our works. Google, however, spurned those requests.
Judge Chin made headlines last year in rejecting a proposed settlement in the case, noting that it would have “reward[ed] [Google] for engaging in wholesale copying of copyrighted works without permission” while also giving Google “a de facto monopoly” over certain works and “further entrench[ing] Google’s market power in the online search market.” While Judge Chin’s May ruling was a less thrilling read–dealing mainly with the arcana of U.S. class-action rules–it was no less momentous, because it means that authors and creators whose works Google copied without permission can advance their rights as a group rather than, as Google vigorously argued, having each to fight Google individually. The inequities of Google’s position were not lost on the court. As Judge Chin wrote:
[G]iven the sweeping and undiscriminating nature of Google’s unauthorized copying, it would be unjust to require that each affected association member litigate his claim individually. When Google copied works, it did not conduct an inquiry into the copyright ownership of each work; nor did it conduct an individualized evaluation as to whether posting “snippets” of a particular work would constitute “fair use.” It copied and made search results available en masse. Google cannot now turn the tables and ask the Court to require each copyright holder to come forward individually and assert rights in a separate action.
The second event occurred just a few days earlier, in an office building in downtown Brussels. There, Europe’s top antitrust enforcer, Joaquin Almunia, announced that after having conducted a large-scale market investigation of Google’s business practices, his office had identified four areas “where Google business practices may be considered as abuses of dominance.”
One of those areas was Google’s misuse of online content. Several companies, including several members of ICOMP and many others, claim that Google misappropriates their content and re-uses it on Google’s own sites, which harms competition by preventing these companies from generating a return on their investments. Almunia noted that Google’s actions “appropriat[e] the benefits of the investments of competitors. We are worried that this could reduce competitors’ incentives to invest in the creation of original content for the benefit of internet users.” Expressing his desire for a “quick resolution” of the case, Almunia invited Google to offer remedies to address these concerns, but added that, should Google fail to do so within “a matter of weeks,” then “the on-going formal proceedings will of course continue, including the possible sending of a Statement of Objections.”
Two shared themes unite these otherwise disparate and far-flung events. The first is the conviction that creativity deserves respect, whether online or off-line. CEPIC’s members, like millions of other authors, performers, artists, and photographers–and even many Internet companies–invest their lives and livelihoods into making great content. Our contributions are what make surfing the Web exciting and energizing. Copyright law is the tool we rely on to protect our photographs and other creations against theft and to earn a living. The clear message from both Judge Chin and Commissioner Almunia is that, while stealing content online might be easy, that does not make it right.
The second is that the dangers of monopoly power and abuse are just as real on the Internet as in the physical world. Google is overwhelmingly dominant in search and related markets, with shares of over 90% in many countries in Europe. Observers see signs of Google increasingly using its economic muscle to shove aside the rules that apply to everyone else and barge ahead when it is in Google’s self-interest. (As one objector quoted by Judge Chin in his earlier ruling aptly put it: “[Google’s] business plan [in launching Google Books] was: ‘So, sue me.’”). The separate decisions by Commissioner Almunia and Judge Chin should give consumers everywhere greater comfort in knowing that, even on the Internet, might does not make right.
Sylvie Fodor
CEPIC (Coordination of European Picture Agencies Stock, Press and Heritage)
