You've Been Sued In The E.U. For Quoting A "Short Extract"!

You are CEO of Google. When you wake up tomorrow morning, your general counsel calls you: "we've been sued in the E.U. for copyright infringement! The claim: our search results for Le Parisien and dozens of other newspapers used more than one word and/or beyond a 'short extract.'" Your response: "is this April Fools’ day?"

Fortunately or unfortunately, the answer is "no." The E.U. is in the midst of passing copyright legislation which would limit or even terminate the safe harbors currently in place for platforms like Facebook on which infringing material can be posted. The other part of the legislation basically makes it an infringement of copyrighted material for Google to have search results from news publishers like Le Parisien which result in either more than one word or "very short extracts" of news articles. 

In the U.S., the Digital Millennium Copyright Act provides a safe harbor take down procedure to companies like Facebook who have infringing materials uploaded by users. Fair use generally allows search engines like Google to produce search results that use more than one word – or a “very short extract” of a news article -- when such use acts as a complimentary – and not a substitute – market for the article.

Content creators have arguably lost a great deal in revenues. Tons of infringing material is posted daily on sites like You Tube. Policing such infringing materials, especially when they can scale so quickly, is very expensive and time consuming—particularly for smaller content creators. On top of this, there is currently no bright line rule in the U.S. as to when a particular use is fair or infringement. As a result, rather than people actually going to Le Parisien's website, many merely read an excerpt – and then stop there. The new E.U. law seeks to address both issues. The law reduces or even eliminates the safe harbor for sites like You Tube. It also provides a bright line between fair and infringing use.

In so doing, the law’s intent is to switch bargaining power back to content creators. Whether such laws eliminate free riding or unnecessarily hinder the free flow of information remains to be seen. One thing is for certain, however: this isn’t April Fools’ day for companies like Google doing business in the E.U. Regulatory and licensing costs of doing business in the E.U. will, in all likelihood, increase.