International report - Online copyright infringement: when Google Images finally meets French law 09 Mar 11
Baker & McKenzie - France
While Google’s exemption from liability for trademark infringement through its AdWords service has now been well established by the Supreme Court (Google v GIFAM, 13th July 2010), the situation with regard to copyright infringement remains more uncertain. Indeed, Google was held liable at first instance with regard to the Google Books search service (SNE v Google, 18th December 2009), but the Paris Court of Appeal recently found it not liable for its Google Videos service (Bac Films v Google, 14th January 2011).
The latest service to be considered is the Google Images search, with regard to which the Paris Court of Appeal issued a long-awaited ruling on 26th January 2011.
Google Images is a service which enables users to search the web for image content. The unique factor in Google Images is that the results page not only links to the website where an image can be found, but also reproduces the image in a thumbnail format within the search results. In addition, Google Images allows internet users to view full-size versions of the images and to download them.
It is these characteristics which led the Société des Auteurs des Arts Visuels et de l'Image Fixe (SAIF), a French copyright collecting society representing photographers and authors of visual works, to bring a claim against Google for copyright infringement of works from its repertory.
Although SAIF brought its case before the Paris courts, Google asked the court to apply US copyright law as “the law of the country where protection is claimed”, under Article 5(2) of the Berne Convention. Choice of law was essential in this case since it would significantly affect its outcome.
In recent years the decisions of the Paris Court of First Instance on choice of law in cases of copyright infringement committed by Google have been notable for their inconsistency. Such inconsistency has particularly arisen from the judges’ interpretation of the aforementioned Berne Convention provision.
At first instance in SAIF v Google (20th May 2008) the court accepted Google’s contention that “the law of the country of protection” is “the law of the place of the wrongful act”. It then reasoned that since the servers enabling access to www.google.fr were located in California and the technology was owned by Google Inc, the US Copyright Act 1976 should apply.
In H&K v Google (9th October 2009), another Google Images case, the same Paris Court of First Instance agreed that “the law of the place of the wrongful act” governed. However, notwithstanding the initial copying and communication from the United States, it held that the act that generated the harm occurred in France since the images were made available to French users via www.google.fr. As a consequence, French law was deemed to apply.
Two months later, this time with regard to the Google Books search service (SNE v Google), the Paris Court of First Instance put the Berne Convention aside to adopt a conflict-of-law analysis. In this respect, it considered that in complex offences, either “the place of the initiation of the harm or the place of the realisation of the harm” supplies the governing law, with the place that bears the “closest link to the controversy” prevailing. The court took into account several elements (eg, that both the plaintiffs and the authors were French and that the book snippets were made available to French users on French territory) to decide that French law would govern the issue.
In the case at hand, the Paris Court of Appeal appears to have finally put an end to the uncertainty regarding the applicable law. According to the appeal judges, in complex offences “the law of the country where protection is claimed” under the Berne Convention can be either the place of the wrongful act or the place where the damage is felt, and the one with the “closest link” to the case should be applied. As the Google Images service is available in French and is accessible to the French public, French law therefore applies.
This analysis of Article 5(2) of the Berne Convention in terms of conflict of laws and the corollary adoption of the flexible “closest link” criterion can be approved only since they prevent forum shopping. In cases of complex offences involving copyright infringements, it would otherwise suffice for online players to place their servers in countries where there is no copyright protection in order to escape copyright infringement actions. Therefore, the Paris Court of Appeal has sent a strong message to infringing service providers that believed they had put themselves out of reach by being located outside France.
Once the question of the applicable law was settled, the court went on to consider Google’s liability for copyright infringement under French law.
Before examining the liability issue per se, the appeal judges first ruled on the liability of Google France, the French subsidiary of Google. Overturning the first ruling, the judges decided that Google France’s liability could not be excluded since this entity helps Google Inc in the exploitation of its network. This seemed to follow a current trend to recognise the importance of Google France as an autonomous actor, as in H&K and SNE.
The appeal court then considered whether both Google France and Google Inc could be held liable for copyright infringement.
At first instance, since the court chose to apply US law, Google enjoyed the fair-use provision of the Copyright Act 1976, and as a consequence was not held liable. With French law now being applicable, Google’s liability issue had to be decided in light of the EU E-Commerce Directive (transposed in France by Law 2004-575).
Since the decision of the Court of Justice of the European Union in Google France v Louis Vuitton Malletier, it has been well established that the exemptions from liability established in the directive cover only cases in which the service provider remained “passive” and “has neither knowledge of nor control over the information which is transmitted or stored”.
Accordingly, in a rather didactic manner, the Paris Court of Appeal applied the active/passive dichotomy to all the steps involved in the Google Images service mechanism (eg, automatic indexation, thumbnail display, deep linking to the targeted image) to rule that in all of these steps, Google remained “passive”. Therefore, Google cannot be held liable for copyright infringement for its Images service. This solution echoed rulings in cases involving the reference and storage of images by community websites such as Facebook (eg, Hervé G v Facebook France, Paris Court of First Instance, 13th April 2010).
It follows that in this case, the Paris Court of Appeal has provided rather clear-cut answers to some long-debated questions. This is all the more true since the same court's ruling in Google v H&K on 4th February 2011, in which the judges confirmed all these points. As for the applicable law, the appeal judges relied on the same body of elements as in Google v SAIF to rule in favour of French law, but instead of using the “closest link” criterion, they relied on the more traditional “substantial point of attachment”. The court confirmed Google’s host status under the E-Commerce Directive, but nevertheless held Google liable since it had failed to comply with its duty to remove the infringing picture promptly once it had been made aware of them.
However, this solution might not be immutable since on 9th February 2011 Parliament issued Parliamentary Report 296 urging the introduction of, alongside the editor and the host, a third category of web actors under the name “editor of services”. This third category would comprise hosts which moved away from a purely passive role by, for instance, publishing information or selling advertising inserts. The new online players would be required to “proactively monitor” the contents that they host. It is therefore likely that some of Google’s services, such as AdWords, would fall into this category.
In the meantime, Google should remain exempt from liability provided that it remains passive. It is therefore doubtful that the solution regarding the Google Images service could be transposed to all the other services provided by Google, in particular its Books service, for which an appeal is still pending in SNR v Google.
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