Can you infringe someone’s right by not infringing it? According to some German press publishers, this is precisely the case after Google’s announcement that it will no longer display snippets and thumbnails from content owned by publishers who are represented by VG Media, a collecting society. This follows the introduction of the Leistungsschutzrecht by the German Government in 2013. VG Media has gone as far as saying that Google is now ‘blackmailing’ them.

In light of this serious accusation, let’s look at the facts. The German Leistungsschutzrecht was passed last year granting press publishers an exclusive right over the use of text excerpts by online services. News publishers interpret the law to encompass snippets (there is legal uncertainty), small fragments of text displayed by search engines usually beneath a hyperlink to provide a better user experience. In effort to exercise this right, the VG Media sued Google, DTAG, GMX, 1&1 and Yahoo! and others over the display of snippets that contained content from publishers that belong to the VG Media collecting society. The last point is important: some of the most popular news publishers in Germany like FAZ, Spiegel, Sueddeutsche, Die Zeit as well as many other news sites decided to not exercise their Leistungsschutzrecht. In fact, they explicitly want to be listed in search results to benefit from the traffic they get from Google and other online services.

In light of this lawsuit, some German online services, like T-Online and GMX, have decided to throw VG Media content out of their search results completely. Google has decided to continue the display of hyperlinks to VG Media content but without snippets. This change will become effective as soon as 9 October. According to VG Media, this move amounts to an abuse of dominant position since it claims Google’s aim is to extract a free use of snippets. Interestingly, Markus Runde, VG Media’s director has stated that the German competition authority, the Bundeskartellamt, will have to scrutinize this behaviour.

What he did not mention is that the Bundeskartellamt has already done so, at VG Media’s own instigation. In this report from August this year, the competition authority stated that not wanting to pay for the display of search results, gives no reason to suppose an abuse. The reason is very simple: the Leistungsschutzrecht does not force anyone to acquire a license for the display of snippets. In plain language, if you don’t want (and perhaps don’t need) a license for the display of snippets or thumbnails, nobody can force you to pay for one. If you don’t display a snippet, it is even more obvious that you wouldn’t need a licence and that you wouldn’t pay for something you are not using. As simple as that.

So how should one deal with the accusation of Google ‘blackmailing’ publishers? In light of the absurdity of that claim, the only explanation is that VG Media has realised that it has shot itself in the foot with the Leistungsschutzrecht it spent so much time lobbying for. Links to the content of their publishers disappear from some online services completely, Google decides to simply not acquire a license for something they will not use, Yahoo! has brought a constitutional complaint against the law and above all, the German competition authority says it’s all ok and legal! This is reminiscent of a ‘snippet’ from Goethe’s Der Zauberlehrling: “Die ich rief, die Geister, Werd’ ich nun nicht los.”

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