The Paris Court of First Instance’s third chamber has ruled that Google Inc.’s bulk scanning of books for its Google Book Search website, done without permission from copyright holders, infringed the copyrights on hundreds of French books. Editions du Seuil v. Google Inc., T.G.I. Paris, 79 PTCJ 226, 1/1/10 (Tribunal de Grande Instance de Paris 3ème Chamber, Dec 18, 2009).

The case raised the issue as to whether Google’s digitization of copyrighted works of French origin and making extracts of them available in response to searches without the permission of authors infringed copyright. The works in question were scanned in the United States and were made available from servers in the United States to users worldwide, including in France. Accordingly, Google argued that based on Article 5.2 of the Berne Convention, the American legal principle of “fair use” should apply. The French court did not accept the argument, holding that the law applicable to complex crimes committed on the internet was that of the state on whose territory the conduct at issue occurred. The court held that French law applied because France had the closest connection with the lawsuit: the plaintiffs were companies established in France and the case involved French authors’ works and French publishers. Further, the scanned material was aimed at readers in France, using a French language website “Google Livres” (http://books.google.fr).

The French court also rejected Google’s arguments that its then-pending settlement of U.S. class-action lawsuits filed by the U.S. Authors Guild, several authors and publishers should be enforceable in France and that book extracts on Google Livres should be considered informative, brief quotations and consequently legal.

The court addressed the issue whether Google should be held liable for making infringing copies under French copyright law. Google argued that it had never made full copies of any of the works and should benefit from an exception to French copyright law that allowed reproduction of short quotations from copyrighted works for informative purposes. However, under French law, the exception of short quotations requires some intellectual work and aim at illustrating the subject matter of the work in which it is incorporated. Accordingly, the court rejected the argument on the basis that Google had posted books’ entire cover pages, chose book extracts at random and harmed authors’ moral rights with some of the short quotations.

The court ordered Google to pay €300,000 in damages and interest to French publisher Seuil, Delachaux & Niestle and to American publisher Harry N. Abrams, both subsidiaries of the French group La Martinière. It also ordered Google to pay a nominal one euro to national publishers’ and authors’ association, Syndicat national de l’édition et à la Société des gens de lettres. In addition, Google was ordered to immediately take down posted excerpts of the publisher’s works and cease scanning and posting further excerpts on penalty of a further €10,000 for each day it delayed to remove the content from its site.

Practice Note: Given that in the French legal system an appeal leads to a new trial during which the appeals court would completely re-evaluate factual and legal issues, it is possible that the decision will be reversed. While the ruling may inspire publishers throughout Europe to file further lawsuits against Google in an attempt to obtain damages for copyright infringement, copyright laws in Europe differ from country to country and the French decision will have no legal effect on courts in other EU countries.