BROOKE GLADSTONE: If you think of the internet as a vast library, it's hard to imagine a better card catalogue than Google. Only not everyone wants in. A few weeks ago, the most popular search engine found itself on the receiving end of a lawsuit by the world's oldest news organization. Agence France-Presse, or AFP, is suing Google in the United States for an alleged violation of US copyright law, essentially charging Google with stealing news content and repackaging it on Google's own subsidiary search engine called Google News. Could this mean the end of news searching as we know it? Here to explain it is University of Virginia law professor Tim Wu, who specializes in international copyright and technology. Tim, Welcome to On the Media.
TIMOTHY WU: Thank you very much.
BROOKE GLADSTONE: I'd like to talk for a minute about an ancestor of this current lawsuit. A few years back, a French anti-racism group sued Yahoo.
TIMOTHY WU: Well, this is the famous Yahoo case, which was a landmark in internet law, and it basically concerned the fact that you were able to buy, in France, using the Yahoo option site, Nazi paraphernalia - pictures of concentration camps, copies of Mein Kampf, and as you mentioned, a group brought a lawsuit, and they convinced a French court that Yahoo's activities were illegal under French law. Yahoo's first reaction was to say that this couldn't possibly affect them, and it wasn't possible to regulate the internet. But, they soon changed their mind when the French court began demanding massive fines. And I think if you do a search today on eBay or on Yahoo, you'll notice that it's hard to find Nazi paraphernalia. So there's a history before this Google case of French plaintiffs controlling the activities of American internet companies.
BROOKE GLADSTONE: Now, you've said that French lawsuits like these encourage a kind of balkanization of the internet, but I'm not sure what you mean by that.
TIMOTHY WU: If you have a series of lawsuits in France, the easiest way to comply with the lawsuits is to change what you offer French citizens as opposed to American citizens. So, one way Yahoo could have complied with the Nazi lawsuit is to stop selling Nazi materials to French people, but allowing the sale to American people. Multiply that many times, and you have, ultimately, different internets for different countries.
BROOKE GLADSTONE: So let's talk about the chances of AFP winning, which would, I guess, further the balkanization of the internet, as you might say. US copyright law has a doctrine called Fair Use. Explain how that relates to this case.
TIMOTHY WU: Well, the United States has a particularly strong version of the Fair Use doctrine, and it essentially has stood for the idea that, even though some things may be technically a violation of the copyright law, the courts will nonetheless give it a pass, because it is a socially productive or desirable activity. Some of the most famous examples of Fair Use are parodies, book reviews. The Sony VCR is protected by Fair Use doctrine. The reason it's relevant to this case is that Google's main defense is that its use of the copyrighted materials of AFP, its limited use of the copyrighted materials, constitutes a Fair Use defense, and in fact I think it's a very strong defense.
BROOKE GLADSTONE: You do.
TIMOTHY WU: Yes.
BROOKE GLADSTONE: But it isn't using it in the transformative way, to use the legal term that you describe that book reviews might. You know, a book review will quote from a book, because they are in the process of creating a review. A parody would use material in order to take off from that. Google isn't transforming the material and creating a new product thereby. It's simply presenting you with the product. So how is that fair use?
TIMOTHY WU: I think Google, in fact, will argue that their usage is transformative. That is, they're giving you a little snippet to give you a preview of what you can get if you actually go to the news provider's site. And I think they will argue that this is a different service than provided by the newspaper itself. Similarly, the fact that they put and compile a whole series of newspapers together further strengthens their argument that they have transformed what was a series of disparate newspapers into a useful summary and a useful guide to what kind of news you can find today through Google.
BROOKE GLADSTONE: Do you think that AFP might take this to French court if they lose in the US?
TIMOTHY WU: That is a logical move, and I would suggest that AFP's chances in French court would be far better. It is, in fact, a little bit of a mystery that they haven't brought a case in French court. French plaintiffs have a good record of winning against America media defendants, leading ultimately, if they win in France and lose in the United States, to further balkanization of the internet.
BROOKE GLADSTONE: The French press has lately been using the neologism "omniGooglization," and I think that's a stand-in for "American digital cultural imperialism."
TIMOTHY WU: I think some of those claims may be overrated; that the real reason for this lawsuit is a cultural war. There's also the fact that AFP perhaps hopes to make some money off this lawsuit. They have asked for millions of dollars of damages, and perhaps they hope that they could convince Google to actually pay for their news content, although I doubt Google would.
BROOKE GLADSTONE: All right. Tim, thank you very much.
TIMOTHY WU: Sure.
BROOKE GLADSTONE: Tim Wu is an associate professor of law at the University of Virginia. [MUSIC]
BOB GARFIELD: Coming up, newspapers ask a wire service for help in keeping the news new, and a flap over female columnists, or the lack thereof.
BROOKE GLADSTONE: This is On the Media, from NPR. [FUNDING CREDITS]