Judge: Google News lawsuit can proceed

Delays decision on Google's request to toss out suit brought by AFP, which could set ground rules for Web copyright.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read
WASHINGTON--A federal judge has postponed a key ruling in a lawsuit against Google brought by Agence France-Presse that alleges Google's popular news search feature violates copyright laws.

U.S. District Judge Gladys Kessler said Tuesday that she was not prepared to rule on Google's request to dismiss the case, and instead granted both sides more time to try to reconstruct Google News pages from randomly chosen dates in 2003 and 2004.

The copyright case has drawn international attention because the legal ground rules for including headlines and summaries of news articles remain unclear. Many bloggers, for instance, routinely republish multiple paragraphs of articles without the permission of the copyright owner.

The search engine, which was sued in March 2005 for at least $17.5 million by the Paris-based news agency, said in court documents last month that "the time has come to dismiss AFP's complaint."

But Kessler said during a 30-minute hearing that confusion and delays over reconstructing archived Google News pages meant the two companies needed more time. "I thought I'd be able to issue an opinion after the last motion hearing," Kessler said. "We've lost a huge amount of time, and I'm not blaming anyone at all."

Agence France Presse, the world's oldest news agency and the third-largest behind the Associated Press and Reuters, claims Google News unlawfully incorporated AFP photographs, headlines and excerpts from the beginning of articles. Also, AFP argues, Google News removed photo credits and copyright notices in violation of federal law.

For its part, Google claims AFP's headlines are not "original and creative" enough to be protected under copyright law. "Typical AFP headlines are factual, simple and contain only one idea--unprotectable as a matter of law," Google says.

In addition, Google's attorneys at Wiley Rein and Fielding have argued that because AFP is required to identify specific photographs and articles at issue--and had not done so for more than a year--the case should be thrown out.

Google has encountered setbacks in similar lawsuits. A California federal judge ruled in February that portions of Google's image search likely violate copyright law. But the following month in an unrelated case, a Pennsylvania judge dismissed a lawsuit against Google brought by an e-book publisher who said excerpts of his Web site appeared in search results. And a Nevada court said Google's cache is not copyright infringement.

The AFP v. Google case is taking an unusually long time and has steadily grown more complex, primarily because of the difficulty of reconstructing archived Google News pages.

AFP said in a May 31 letter to Google's lawyers that because many of the 2003 and 2004 articles and photographs had been routinely deleted from the Web, its investigation had "found that almost all of them lead to dead ends."

Complicating matters still further was the time-consuming process AFP used to evaluate the archived pages Google was able to provide. In a court filing Monday, AFP said it had enlisted five full-time employees and "several other individuals" from its Washington office to sort through the mounds of data.

Joshua Kaufman, a lawyer for AFP at Venable LLP, said during Tuesday's hearing that the AFP team has identified 350 French news stories and four English stories so far. AFP delivered 11 boxes of documents to Google on Monday, Kaufman said.