There was a lot of press recently when the Tribunal de Grande Instance de Paris 3ème chambre, 2ème section released its ruling of December 18, 2009 in the case involving Google and several publishers and authors.
The case raised the interesting issue as to whether Google’s digitization of copyrighted works of French origin and making extracts of them available in response to searches without the permission of authors infringes copyright under the law of France.
What makes the case particularly interesting is that Google’s digitization of the books took place in the United States and the extracts were made available from servers in the United States to users worldwide including France. Google had argued that US copyright law should apply and that under this law it could rely on the fair use defense. The French authors and publishers disagreed arguing that French law should be applied.
The French court first had to resolve the conflicts of law question as to which law to apply to the alleged infringements. The Court chose French law holding that it had the closest connection to the activities. According to the court (all translations of the case were made using Google Translate):
“Whereas applicants criminalize the infringing use by Google Inc. and Google France the company works through the issue of unauthorized scanning of books on which they hold the copyright and broadcast without their permission, on the internet of such works;
that to oppose the infringement action the companies Google Inc. and Google. France invoke the application of U.S. law and argue, by reference to Article 5 § 2 of the Berne Convention, the law applicable to complex crimes committed on the Internet is that of the state on whose territory occurred the conduct at issue, except to establish a particularly close proximity with France, which is impossible in this case since the process of digitizing books in question was made in the United States, and therefore only provisions of the Copyright Act and the concept of “fair use” should be applicable to this case they argue that the alternative representation of the titles of the works in question and works in the form of short extracts meets the conditions set by Except for brief quotations under Article L 122-5-3 of the Code of Intellectual Property and the digitization of these works do not constitute unlawful reproduction, since the recording conditions on Google’s servers does not give users the ability to display these books on their screens;
it should be noted that the corporate defendants do not claim applicator of U.S. law only in relation to acts of scanning books in question against him;
But seeing that the law applicable to non-contractual liability in tort complex is the state where the harmful event occurred; this place means that both the fact that the damage that that place of realization of the latter;
in this case, it is undisputed that the disputed works of French authors to be scanned with excerpts available to users on French national territory, that also should be noted that besides the fact that the court is the French court, the plaintiffs are companies established in France for the Editions du Seuil company or subsidiary of a French company for the other two, as well as stakeholders volunteers empowered to defend the interests of authors and publishers of French are of French nationality, that Google France has its headquarters in France, that the domain name to access the site http://www.books.google.fr has an extension. “en” and that this site is written in French ;
it follows from all of these elements that France is the country having the closest connection with the dispute, which justifies the application of French law contrary to the contentions of the defendants;”
The next question was whether Google was liable for making infringing reproductions under French law. Google had argued that users never receive access to the entire works, so it was not liable for making copies. It also argued that it could not be liable for making available to users short infringing extracts from the digitized books. The French court disagreed with Google on both counts.
“Under the terms of Article L 122-4 of the Code of Intellectual Property, “any representation or reproduction in whole or in part without the express consent of the author or his successors or assigns shall be unlawful. The same goes for the translation, adaptation or transformation, arrangement or reproduction by any technique or process “;
challenge for the unauthorized acts of scanning and distributing books on Google Book Search these books, the corporate defendants argue that they carry no representation or reproduction of the material at issue in their entirety, but only the snippet view “within appropriate limits” covered by the exception of a short quotation information purposes;
they essentially specify that digitization requires an act of manifestation of the perpetrator’s intention to communicate the work to the public, which is not the case insofar as the affected site would not of view all the works in question;
Considering however that the digitization of a work consisting of technical case to scan the entire works in a computer format given, is a reproduction of the work that requires as such when it is protected prior permission of the author or his assigns;
companies that Google can not seriously contend, without calling into question the same functionality of the Google Book Search, the constitution of a digital file is not an act of reproduction do not reproduce itself in the intelligible form of the work when setting resulting from the digitization of books and their storage in a digital database is still able to communicate the work to the public in an indirect manner;
Considering also that the companies Google Inc. and Google France does not dispute that the service provides access issue, and therefore the communication to the public, title, coverage and excerpts of the works in question and performing acts of representation unauthorized works concerned;
However, they invoke the exception of brief quotations provided by Article L 122-5 3 to evade responsibility;
But whereas these provisions may be applicable in the case when the covers are relevant to the public in their entirety, even in reduced format, and the randomness of the choice excerpts represented disclaims any object d ‘information as provided by Article L 122-5 3 of the Code of Intellectual Property;
Whereas the infringement of the economic rights is thus achieved to the detriment of plaintiffs publishing companies, the NIS and the LDMS;
that also displayed on the website of the offending excerpts from works that Google Inc. recognizes truncated random form of banner paper torn undermine the integrity of works whose authors are members of the six the LDMS identified through this procedure;
Considering however that LDMS can not rely on any infringement of the right of authors to disclose when that right is exhausted by the first broadcast of the work;”
The court made the following order in the case:
“The Court, publicly, by making available to the Registry, by trial and made contradictory at first instance…
Said that the law applicable to this case is the French law.
Said that fully reproducing and making available extracts from works items of the minutes of the bailiff June 5, 2006 and on which the plaintiffs hold copyrights on the site whose address is a “http: / / books.google.fr “without their permission, Google Inc. has committed acts of infringement of copyright to the detriment of companies Editions du Seuil, Delachaux & Niestle and Harry N. Abrams.
Said that doing so is Google Inc. has also committed acts of infringement of copyright to the prejudice of the National Union of Publishing, the company of literary men of France and six authors identified as members of the LDMS
Prohibits the company Google Inc. further actions that, under penalty of € 10 000 per day of delay past the deadline of 30 days after service of this decision.
Reserves the liquidation of the penalty.
Condemns the company Google Inc. to pay companies Editions du Seuil, Delachaux & Niestle and Harry N. Abrams, who will make their case with each distribution, the sum of € 300 000 as damages in compensation for damages under this head.
Condemns the company Google Inc. to pay the national union of publishing and society of literary men of France the sum of 1 (one) each as damages.
Disqualification for failure to exploit the rights of society Editions du Seuil on the mark “Editions du Seuil” No. 023167814 and the trademark “Threshold” No. 2958544, in that they identify services “location time access to a computer database relating to literary, artistic or documentary. …
Authorizes the publication of part of this trial in three newspapers or periodicals of their choice and costs advanced society lnc Google, without the cost of each of these publications do not exceed, at the expense of the latter, the sum of 3500 € HT and on the homepage of the site http://books.google.fr for a period of 15 days.
Condemns the company Google Inc. to pay companies Editions du Seuil, Delachaux & Niestle and Harry N. Abrams, together, the sum of 30 000 € under Article 700 of the Code of Civil Procedure.
Condemns the company Google Inc. to pay the national union of publishing and society of literary men of France the sum of € 5,000 each under section 700 of the Code of Civil Procedure.
Orders provisional execution.
Rejects any further requests or otherwise.
Condemns the company Google Inc. for costs, which can be directly recovered pursuant to Article 699 of the Code of Civil Procedure.”
Google has stated it intends to appeal the decision. Meanwhile the US class action continues with the fairness hearing scheduled for February 18, 2010.