Media lawyers pen argument for Murdoch's copyright case

The lawyers, using last week's book-scanning settlement extension as the timepeg for the opinion piece, characterise Google's defense as analogising its services to that of a library. They reject the legal shield such a premise implies - that of "fair use" - saying search engines earn ad revenue for cataloguing information where libraries do not, rendering the search engines' use inherently unfair.

Even assuming that fair use really only means free use (which U.S. court case Campbell v. Acuff-Rose (1994) established not to be the case, at least in the 90s before digital media reached the level of proliferation it enjoys today), it turns out that two very near models of this same issue have already been presented to the highest courts and settled in a manner arguably unfavourable to Murdoch's position.

In New York Times Co., Inc. v. Tasini (2001), the U.S. Supreme Court held that a newspaper is not entitled to repurpose freelancers' work in perpetuity without permission. Freelancers, who had been paid one-time fees per article, sued en masse when The New York Times used their articles without permission or additional compensation to develop on its Web site a reader-accessible archive of past content.

The decision not to charge for certain articles made no difference. Nevertheless, it is not clear from available reports whether the sum (to have been distributed among a substantial number of plaintiffs) has yet to be paid. Thus, it appears that at least one newspaper entangled in the search engine war would be seeking legal protection for content it may yet owe and, in fact, first infringed itself. Not exactly the strongest position from which to bargain for copyright enforcement before a jurist. None of Murdoch's recent statements suggest he intends to seek remuneration for freelancers from Google as part of his overall assault on search engines.

And, in Matthew Bender & Co. v. West Publishing Co. (1998), the Second Circuit upheld a legal search engine's right to catalogue legal opinions and statutes, even as the act of indexing did not confer in the cataloguer a copyright to the law itself. In reaching resolution, the court reiterated the point that the law - like newsworthy facts themselves - are essentially public property held in common by all, as explained by Stanford University's Copyright & Fair Use Overview. Hence, the courts have not appeared hostile to a search company's right to turn a profit by making more accessible information that doesn't belong to the search company in the first place.

But of greatest concern to Murdoch - and the lawyers who appear to agree with him - ought to be the pair of recent wins Google has racked up, albeit in lesser courts. In Field v. Google (Jan. 2006), the U.S. District Court for the District of Nevada rejected an attorney's complaint (seeking US$2,550,000 in statutory damages) that Google infringed his 51 Web-based publications each time it created a cached version of the material. The court reasoned that by failing to code a "no-archive" metatag into his documents, Field had granted Google an implicit license to operate vis-a-vis his works as it is widely known Google ordinarily would.

The result was no different for Parker v. Google (March 2006), which involved another lawyer challenging Google's archiving system. In his 72-page complaint, Parker claimed Google infringed his copyright both by performing the archiving incidental to indexing as well as by quoting the Web-based material in delivering search results.

The U.S. District Court for the Eastern District of Pennsylvania dismissed this complaint on a somewhat different basis, though. Relying instead on a subsection of the Digital Millennium Copyright Act. Essentially, the court held that the Online Copyright Infringement Liability Limitation Act excused Google and its peers from infringement claims based on the functions associated with providing World Wide Web access.

Of course, Sanford and Brown should be very familiar with the foregoing principles, since no modern lawyering happens without the aid of "shepardizing," which is industry jargon for electronically tracing legal precedent using LexisNexis, one of the most powerful and pricey search engines of public documents in the world.