Reforming Section 230 is the Right Idea—But Not When Done in the Wrong Way for the Wrong Reasons

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In the ongoing war between US President Trump and Twitter over Twitter’s actions to fact-check one or two of the President’s more truth-stretching tweets, Trump has unveiled his chosen weapon to teach the social media platform a lesson. He is proposing to reinterpret elements of Section 230 of the Communications Decency Act of 1996. (I’ll explain the significance of this in a minute). When Twitter first added a “contextual label” to Trump’s assertions that mail-in ballots equated to fraudulent voting, directing readers to alternate interpretations (specifically to the Washington Post and CNN, both among the major bêtes noires of the media world as far as Trump is concerned), Trump threatened (on Twitter of course) to “strongly regulate” or “close…down” tech giants that “silence conservative voices”.

On May 28, he issued an Executive Order designed to try to exert control over social media companies in several ways, the most draconian of which would be to reinterpret Section 230 so that if an online platform engages in any editing or restricting of content posted by users, this will make it a “publisher” of such material and open it to potential legal liability. Although Donald Trump in his role as President of the United States cannot be sued for defamation for any action taken in the exercise of his responsibilities (such as communicating to the public), it would appear that if this proposal becomes law platforms like Twitter could nonetheless be exposed to legal liability for the defamatory comments of the President if they fact checked them! That’s unlikely to happen, however, as the intent of the law is clear, and Trump by himself cannot change the law. Section 230 does just the opposite of what is proposed in the Executive Order by giving platforms immunity from liability if, in good faith, they remove material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such content is constitutionally protected”. According to Section 230, taking such action will not put the platforms in the position of becoming the publisher of the material by virtue of exercising editorial judgement.

So far Twitter has not removed anything posted by Trump, but according to the law it has the explicit power, indeed the responsibility, to do so if comments fall into any of the above categories. However Section 230 is not just about removing objectionable content. In the way that it has been interpreted by US courts since it became law almost 25 years ago, it also provides internet platforms with immunity from legal liability if they do not remove content because, according to this law, they are not considered publishers of the material (unless they control the content put up on the platform). In this respect, Section 230 has been described as both a sword and a shield. The sword is the ability to take down objectionable content; the shield is immunity from prosecution for doing so, as well as not being responsible for the content posted by users.

Unfortunately it is the shield aspect of the legislation that has been most often invoked by internet platforms, allowing them to ignore all sorts of abusive material on their sites on the basis that they are merely passive bulletin boards, and not responsible for content posted by others. Thus hate speech, content promoting terrorism and violence, revenge porn, sex trafficking, and so on has been allowed to proliferate on the internet with no legal recourse against the platforms providing access to the material. In some cases, platforms have had no incentive to remove access to objectionable material because they have been able to monetize it by attracting consumer eyeballs and thus advertisers. The website Backpage, which was eventually shut down after Congress passed targeted legislation carving sex trafficking  content out of Section 230 immunity, was a good example of how the original intent of Section 230 had become distorted over the years as a result of numerous court rulings.

Backpage was a classified ad online service, a bit like Craig’s List, except that it had a section offering “adult services”, which allegedly knowingly allowed and encouraged users to post ads related to prostitution and human trafficking, particularly involving minors. It was alleged by state prosecutors that as much as 99% of Backpage’s revenues came from these sources, and that the company was failing to cooperate in curtailing illegal activity. However, despite strong evidence that Backpage actively participated in promoting the website as a sex clearing house, several claims against it were dismissed by US courts on the basis of the immunities provided by Section 230.

As a result of these types of abuses, there has been a strong push for reform of Section 230 by, among others, members of the copyright community who would like to see internet intermediaries act responsibly and exercise a greater degree of (or indeed any) control over any content that they host, distribute or enable. (This is despite the fact that Section 230 explicitly carves copyright infringement out of the immunity provided. That issue is dealt with in separate legislation, the DMCA.) If the content industries have serious reservations about how Section 230 has been used, the tech industry, social media and internet intermediaries love it and have fought tooth and nail against any suggestion of reform. Silicon Valley has gone so far as to push the US Trade Representative (USTR) to seek Section 230-like immunities for internet platforms in trade agreements negotiated by the United States. As a result, the new NAFTA (USMCA/CUSMA) contains Article 19.17, a key element of which reads as follows:

“…no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”.

In plain English, for “interactive computer service” read social media platform, search engine or internet bulletin board and for “information content provider” read publisher.

This provision has been controversial in both Canada and the US. As I have written elsewhere (“Did Canada get “Section 230” Shoved Down its Throat in the USMCA?”), the final text does not require Canada to provide any new immunities for internet intermediaries as existing Canadian law–including secondary liability–will continue to apply, although there is a potential restraint on enacting new legislation that could treat platforms as publishers. In the US, there was an eleventh hour move to have Article 19.17 dropped from the text of the USMCA when Democrats reviewed changes they wanted to see made before they would agree to ratification in Congress. In the end, unfortunately in my view, Article 19.17 remained as House Speaker Nancy Pelosi expressed regrets that she had moved too late on this issue. It should never have been included in the USMCA, or any other trade agreement, given that one of the main objectives of the tech industry was to limit the ability of Congress to amend Section 230 in future as it would have become a treaty obligation. In a furious last-ditch campaign to keep Article 19.17 in the Agreement, the US tech industry went on record to concede that inclusion in the USMCA/CUSMA did not in fact prevent Congress from making future changes. Worth noting is that USMCA/CUSMA is scheduled to come into force on July 1 of this year, all three countries having now completed the ratification process.

It will be interesting to see if President Trump’s threat to modify Section 230 in order to punish Twitter will run into any legal issues as a result of US commitments under the USMCA. While that is theoretically possible (although the US could choose to ignore its obligations under the Agreement on this one point, and would likely not be challenged by either Canada or Mexico), this is unlikely to arise as there is little likelihood that Trump will get his way on Section 230. His request that the Federal Communications Commission (FCC) take action to determine whether social media platforms are acting in good faith (and thus qualify for immunity from liability) runs head on into considerations related to the First Amendment of the US Constitution, which guarantees freedom of speech, and is a real stretch. More particularly, the use of an Executive Order to bypass the will of Congress expressed through legislation is fraught with challenges.

It is not just the political process that is a problem. Trump has decided to use Section 230 in order to take personal revenge on Twitter, not to reform it or to address the fundamental issues inherent in the abuse of its immunity provisions by internet intermediaries who have used it to avoid taking down clearly harmful content. By making this allegedly about “silencing conservative voices”, Trump has in effect hijacked the issue of Section 230 reform. As copyright blogger David Newhoff put it in his aptly titled piece on this issue, What Happens When the Biggest Troll on Twitter is the President?”;

“The EO (Executive Order) itself may be a worthless piece of paper Trump signed to make himself and a few of his fans feel good, but now that he’s stamped his brand of partisanship on this narrative, one can imagine any number of ways this non-partisan discussion can become needlessly mired in the muck. As mentioned, I can certainly imagine the (tech) industry using this story as leverage to stymie legitimate review.”

There is a real risk that meaningful and needed reform of Section 230 to make platforms more accountable for harmful content they host or distribute will become conflated with the highly partisan political debate taking place in the run up to the US election in the fall, clouding the real issues and leading to no action at all.

It is ironic to see Trump, who has apparently made over 52,000 tweets since becoming President and who reportedly has over 80 million followers, get into a head-butting confrontation with Twitter. The US journal The Atlantic’s take on this was that, “The president’s two strongest instincts stand pitted against each other: his need for attention and his need to punish enemies.”

Meanwhile Canadians (and Mexicans), who each have an indirect stake in this debate given the inclusion of Article 19.17 in the new NAFTA, will sit on the sidelines and watch this debate play out in Washington. Even if the USMCA is not directly engaged, reform of Section 230 to make internet platforms in the US more responsible for the harms created by the content that they distribute or enable would be a step toward greater accountability. It would be in line with Canada’s announced intent to require social media platforms to remove illegal content within 24 hours or face significant penalties. Appropriate Section 230 reform would be welcome and is certainly needed, but it should be done in the right way and for the right reasons. Punishing Twitter for fact-checking is not one of them.

© Hugh Stephens, 2020. All Rights Reserved.

Why Would Anyone Infringe the “World’s Worst Movie”? (Actually There was no Infringement—Ontario Court Rules it was a Fair Dealing)

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The only cult movie I have ever watched is Rocky Horror Picture Show, and that was years ago. However, I still remember the flicking of cigarette lighters (this shows how long ago this was) at certain points in the movie and people shouting out various expletives, as if on cue, as certain actors appeared on the screen. Until recently I had not heard about, much less seen, a more recent cult film, The Room, (2003). Now that I have seen parts of it—but not all, I must confess—I can say it amply lives up to its reviews as possibly the worst film ever made. The Guardian described it thus

a $6m car crash that has been dubbed “the Citizen Kane of bad movies” thanks to its stilted dialogue, flimsy plot, repetitious storyline and tone-deaf, godawful acting.”

This reputation has been the wave on which its director, producer, writer and lead actor Tommy Wiseau has ridden to a form of fortune and “fame”. Although the film grossed under $2000 during its two-week run before it disappeared from screens, it was viewed by a few cinephiles who considered it to be such a truly terrible movie that it would fun to get together with friends to watch it—and laugh.  Wiseau was asked to arrange for a private showing. It was a sell-out and since then watching the film has become a cult experience for its fans. Rituals have developed surrounding showings of the film, and fans often come in costume for the (usually) midnight showings. Wiseau has turned the film’s awful reputation into a promotional vehicle, making cameo appearances and selling merchandise at various showings of the The Room in independent cinema venues across North America. He has also been highly protective of his creation, and the “mystique” surrounding it that has enhanced its appeal to cultists. Amongst the elements of mystique is Wiseau’s personal background. Where is he from? (He claims he is from New Orleans). What is his story? How was he able to finance the making of the film?

Some of this was revealed, or more correctly partially revealed, in the 2017 New Line film, The Disaster Artist, a dramatization directed by and starring James Franco. That film, based on a memoir written by Wiseau’s co-star Greg Sestero, and a book Sestero co-authored with writer Tom Bissell, tells the story of how The Room came to be made, and what happened on the set. It won critical acclaim. Franco won the award for best actor (portraying Wiseau) at the 2017 Golden Globes and the film was nominated for an Oscar for the best adapted screen play. The Disaster Artist was made with Wiseau’s full approval and cooperation. He was paid an undisclosed sum for his authorization, and apparently also had a financial stake. Not so popular with Wiseau was a documentary titled A Room Full of Spoons, a self-described “unauthorized documentary” made by independent Canadian film-maker Richard Harper and his associates. And hereby hangs a copyright tale.

The title of the documentary comes from an episode in the film where a stock photograph of a spoon appears in a framed picture in the main room where the “action” (such as it is) takes place. The props manager had not even bothered to insert a “personal” photo into the frame, revealing once again the poor production values that characterize the movie. At this point in the action, cult fans throw spoons (presumably plastic) at the screen. Harper first came into contact with Wiseau at a performance of The Room at the Mayfair Theatre in Ottawa (Ontario), and was so captivated by the experience that he decided to produce a documentary on the movie and on Wiseau. To help raise funding, Harper launched a Kickstarter campaign in 2015 to produce what his promotional material described as “A love letter to The Room”. By the time the filming of A Room Full of Spoons was completed, the “love letter” had turned into what could better be described as an exposé from a jilted lover.

Wiseau initially cooperated with Harper but that cooperation began to wane once Wiseau had made his deal with the producers of The Disaster Artist. He reneged on agreements to licence clips of The Room to Harper and insisted on final editorial sign-off. Growing increasingly frustrated, Harper and his associates proceeded with the filming without Wiseau’s agreement, including many interviews with members of the cast. Because of the nature of the documentary, which was centred on fan reaction to the film, Harper needed to incorporate some footage from The Room, and the final cut of his 109 minute film includes 69 clips from the original movie totalling approximately 7 minutes in all. Not happy with the documentary and its treatment of him and his film, Wiseau set out to stop the release of A Room Full of Spoons. This is where it gets interesting from a copyright perspective.

A Room Full of Spoons was successfully released and exhibited at a number of film festivals in Europe and North America in an attempt to get publicity and a distributor. Wiseau then counter-attacked, accusing Harper of copyright infringement. He sent a number of cease and desist letters to festival organizers. As a result of Wiseau’s actions, a planned tour of North America and Europe for the documentary had to be cancelled. Further negotiations took place and some changes were made to the film but just the day prior to its official release in June 2017 in Toronto, Wiseau’s legal counsel sought an injunction to prevent its release. Harper and his associates were caught by surprise and did not appear in court to oppose the proceedings. An interim injunction was granted, with a date set in October for a full hearing. During the period of the injunction The Disaster Artist was released but A Room Full of Spoons had to remain on the shelf.

When the injunction petition was re-heard in October it was dismissed on grounds of less than full disclosure by the plaintiff (Wiseau), with costs awarded to Harper. Unsuccessful attempts were made to reach a settlement and the case ended up at trial in Ontario Superior Court, with Wiseau alleging several offences, ranging from breach of his copyright and moral rights, misappropriation of personality, passing off, and intrusion upon seclusion. The defendants counterclaimed with respect to improper obtaining of the injunction and other acts taken to prevent the release of A Room Full of Spoons. Regarding the charge of breach of copyright, Harper argued fair dealing, and that is what we shall look at in this blog posting.

Mr. Justice Schabas examined this issue at length. First, he had to decide whether there was a “substantial taking”, in other words was there sufficient copying of material from The Room to constitute a possible infringement before examining whether such use was covered by fair dealing? The issue of what is “substantial” is not defined by law, is subject to interpretation and is not necessarily related to quantity. A substantial taking could involve just a small part of a work if the material copied formed its essence. The judge decided that the copying was substantial even though the clips of the film constituted just 7 minutes of the documentary;

In my view, Room Full of Spoons does reproduce a “substantial part” of The Room within the meaning and intent of…the Copyright Act. While the amount is not large compared to the length of the film, the documentary would not be the same without the number of clips used, and this amount of use cannot be regarded as “trivial””.

Having established that there was substantial use of the material, the court then tackled the fair dealing question. This in turn required a determination as to whether the taking fell within the specified fair dealing purposes enumerated in the Copyright Act. In Canada, these are research, private study, education, parody, satire, criticism, review or news reporting. For the latter three, information regarding the source of the material, etc. must be provided. So did Harper’s use fall within any of these allowable purposes? The defendants claimed their use fell under “criticism and review”. The plaintiffs claimed that Harper’s film was not a “proper” documentary but rather a “tabloid-style exposé”. The court heard evidence from various witnesses as to the definition of a documentary but in the end decided that the definition used by the Academy of Motion Picture Arts and Sciences, namely that a documentary is simply a non-fiction film, made the most sense. The court also noted that additional information provided in the film about where Wiseau was originally from (Poland), his birth name (Piotr Wieczorkiewicz) and how old he was (born October 3, 1955) constituted “news reporting”. I will cut to the chase and quote from the court record;

“In short, a documentary can be many things, and can be positive or negative about its subject. To the extent that a documentary uses copyrighted material for the purposes of criticism, review or news reporting, then such use is for an allowable purpose under the fair dealing provisions of the Copyright Act. Room Full of Spoons meets each of those purposes.”

In addition, the credits in the documentary met the requirements of attribution.

However just because a dealing falls within an allowable purpose does not necessarily make it fair. In earlier cases, the Supreme Court of Canada outlined six factors that need to be assessed in determining whether a use constitutes fair dealing. No one factor is determinant; it is the overall assessment that counts. The factors are (1) the purpose of the dealing; (2) the character of the dealing; (3) amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work and (6) the effect of the dealing on the work.

Let’s see how the court weighed the six factors.

Purpose

Since the purpose was for criticism, review and news reporting, the dealing met this test.

Character of the Dealing

Since the copyrighted material was generally accompanied by commentary illustrating or supporting points made by the narrator or interviewees, a common technique used in review and criticism, the court found the character of dealing was appropriate and supported a conclusion that the dealing was “fair” under this factor.

Amount

The court found that while the documentary’s use of footage from The Room was not trivial, it was also not excessive. The purpose of the copying was not to replace the original film.

Alternatives

Could Harper have used a non-copyrighted work to achieve his objectives? Since the subject of the documentary was The Room, the court determined that without material from the original film, Harper could not have made his documentary. However, instead of using material without permission, he had the alternative of licensing it from Wiseau, but Wiseau had refused access to any of the material unless he had editorial control. The court observed that one of the reasons for a fair dealing exception for criticism was to enable objective criticism, specifically criticism that the object of the criticism may not like or agree with.

Nature of the Work

The original work, The Room, was neither unpublished nor confidential. Indeed, full copies exist on YouTube. The court found that this factor favoured Harper.

Effect on the Dealing on the Work

This factor looks at whether the dealing had a negative impact on the original work, for example, would it compete with it? Wiseau complained that Room Full of Spoons would be in competition with his film, even though it was a derivative work. A test might be whether viewers who had seen the documentary might consider that they now had no need to view the original film. Some experts who testified thought that watching the documentary might whet the appetite of viewers to see the original. The court concluded that there has been no evidence that the limited release of the documentary had any negative impact on screening of The Room, and in fact the two works might complement rather than compete with each other.

Having seen how the court examined each of the factors, you will not be surprised that Judge Schabas concluded, “the fair dealing exception to copyright infringement applies in this case.” 

If that wasn’t good news for Wiseau what came next was worse. After dismissing Wiseau’s various other complaints (infringement of moral rights, passing off, misappropriation of personality, etc.), the court then determined damages from the defendant’s counterclaim. The defendants were awarded $550,000 USD in general damages, to compensate them for loss of earnings given that Wiseau’s litigation had caused them to miss the “window of opportunity” to distribute A Room Full of Spoons at the time of the release of The Disaster Artist, and an addition $200,000 CAD in punitive damages, plus costs.

The punitive damages resulted from the way in which Wiseau had conducted his pursuit of Harper et al. Once the court action had been initiated, Wiseau dragged his feet, failed to appear, failed to appoint counsel and then tried to withdraw the case to have it heard in an alternate jurisdiction (in the US). As the court stated;

The plaintiffs’ conduct has been oppressive and outrageous towards the defendants over many years and in this lawsuit. The plaintiffs engaged in bad faith negotiations with the defendants in order to delay or prevent the release of the documentary when it likely would have received much attention and accoladesThe plaintiffs did their best to keep the cloud on title over the documentary caused by the injunction for as long as they could by attempting to delay the litigation whenever possible.”

The defendants posted a triumphal note, “We Won!”  Indeed they did, in what seems like a victory for justice and common sense. I wouldn’t necessarily say that about all fair dealing/fair use litigation since at times the courts have, in my opinion, stretched the application of what is “fair” to the detriment of the rights-holder. Moreover, there is a current risk that fair dealing in Canada will be widened even further, with the possibility that the list of specified purposes will be considered “illustrative” rather than “exhaustive”. This would be bad news for creators and rights-holders. Be that as it may, fair dealing and fair use are also an integral part of the copyright system, as I pointed out in a blog post a couple of years ago, and this case proves the point. It also helped clarify several issues regarding the application of fair dealing in Canadian entertainment law.

It may have been a pyrrhic victory, however. The cloud of uncertainty hanging over the legal status of A Room Full of Spoons has been lifted—in Ontario at least. Presumably Harper and associates are now free to strike an agreement for distribution in Canada, if they can. But the Ontario court ruling has no legal status in the US, (other than as a possible point of reference) and Wiseau could launch action there to try to block a US release of Harper’s documentary. This is exactly what he suggested he would do when seeking to withdraw his Ontario case after it became apparent it was not going well for him. Moreover, Harper still has to collect damages from Wiseau, Wiseau Films, and Wiseau Studio LLP. Wiseau has proven to be a slippery character and recovery of damages from these US-based entities may not be so easy. I am led to understand (don’t quote me) that since neither Ontario nor Canada has an enforcement of money judgement treaty with the US, enforcement of Mr. Justice Schabas’ judgement may be problematic. At the very least, further litigation would likely be required.

It’s been quite a saga. Wiseau continues to generate publicity with his actions, and to pique the curiosity of those who may want to watch the “world’s worst movie”. Copyright infringement was really a side-show in the legal case against Richard Harper as the real intent of Wiseau’s actions was to stop the release of a film about him that he didn’t like. As the judge noted, Wiseau could possibly have sued for defamation, but he instead chose the route of copyright infringement, with a few other alleged offences thrown in for good measure. It didn’t work and was an expensive lesson on the consequences of abusing the process. The full 133 page judgement makes for interesting reading, if you are stuck at home in self-isolation and feel so inclined.

But if you’re really interested in what all the fuss is about, go and see The Room and then take in the “unauthorized documentary”, A Room Full of Spoons. There is no question that you will have fully earned your cult badge at this point.

© Hugh Stephens, 2020. All Rights Reserved.

The Ethics of Listening to Music—Especially Vinyl—in this Age of COVID-19

Photo credit: Author

For those of us staying at home these days, music has become a Godsend. If you want to avoid the daily COVID count on TV or radio, music is a great escape. Most will turn to various streaming services, but one group of aficionados will be getting out the record jackets and dusting off the turntable. Yes, you may have heard the news. Vinyl is back and on a roll. Continue reading “The Ethics of Listening to Music—Especially Vinyl—in this Age of COVID-19”

WIPO Helps in the Fight Against Online Piracy

Source: flikr.com (creative commons)

Last month for World Intellectual Property Day, April 26, I wrote a blog posting on pirate site blocking, and the need to find a global solution to the growing global problem of online content streaming piracy. I commented that while the World Intellectual Property Organization (WIPO) does a good job in promoting greater public awareness of the importance of intellectual property (IP) globally, and has made good if slow progress in working towards agreements on international remedies to IP infringement, the solution to growing online streaming piracy rests at the national level because it is only at the national level that measures can be invoked requiring ISPs to block offshore pirate streaming sites. However, despite its inability to require member states to take action to block pirate sites, WIPO has been active in stimulating the exchange of information on ways to combat download and streaming piracy. This exchange of information is achieved through its Advisory Committee on Enforcement (ACE). Continue reading “WIPO Helps in the Fight Against Online Piracy”

Watch Out North Carolina! Queen Anne Will Get Her Revenge

Source; Joseph Nicholls, 1726; Wikimedia Commons

For several years now I, and others, have been writing (here, here, and finally, here) about the so-called “Blackbeard case” and his ship the Queen Anne’s Revenge, sunk off the North Carolina coast in 1718. It involves a case of blatant piracy, not by Blackbeard, but by the State of North Carolina which not only infringed the copyright of the film made of the discovery and salvage of the wreck produced by filmmaker Rick Allen, but then passed a law (colloquially known as “Blackbeard’s Law”) explicitly depriving Allen of his copyright in the film. It was a case of state-initiated and sanctioned piracy, all hiding behind the doctrine of state sovereign immunity as expressed in the 11th Amendment to the US Constitution. For those not familiar with the facts of the case, here are the main details. Continue reading “Watch Out North Carolina! Queen Anne Will Get Her Revenge”

World IP Day: Time to Forge a Global Solution to a Global Problem (Blocking of Pirate Streaming Sites)

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I am writing today to mark World IP Day, April 26 and, as part of this salute to the work being done in protecting IP rights around the world, to highlight a growing global problem affecting IP stakeholders, streaming piracy. While the World Intellectual Property Organization (WIPO) does a great job of promoting an awareness of IP and in moving forward (usually slowly) with international remedies, the technological revolution has been changing the landscape for IP rights-holders at break-neck speed, in the process often benefiting those who make a business model out of free-riding. A recent study in the US indicated that streaming piracy in 2019 cost Over the Top (OTT) providers (i.e. content platforms like Netflix that deliver content through the backbone of the internet) and pay-TV companies $9.1 billion (USD) in losses from piracy and illicit account sharing. The report appears to be limited to the US and it is not clear what percentage of the losses come from piracy and what is from account sharing (if you want to pay $7,500 to acquire the report, you can get this information), but there is no question that streaming piracy is a major source of income loss for content distributors and forms a significant part of the estimated cost of overall piracy and counterfeiting. Continue reading “World IP Day: Time to Forge a Global Solution to a Global Problem (Blocking of Pirate Streaming Sites)”

Holding Google to Account: France Takes a Stand

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The French Competition Bureau (l’Autorité de la Concurrence) struck a strong blow in the global effort to hold Google to account under national laws when it issued an order on April 9 requiring Google to negotiate with French press publishers and news providers regarding licensing fees for news content appearing in Google search listings in France. The Authority gave Google three months to negotiate “in good faith” (de bonne foi) and come up with an agreement that results in payment to publishers. This marks an escalation in the wrestling match between Google and European regulators over a new requirement in the EU Copyright Directive requiring search engines and news aggregators to compensate news content providers for excerpting snippets of their content when providing search results. Under Article 15 of the Directive a new “neighbouring right” has been given to press publishers expanding their ability to control the reproduction and communication of their work to the public. Continue reading “Holding Google to Account: France Takes a Stand”