Kranten.com-case
(informal english translation by mr. Lars Huisman of Stibbe Simont Monahan Duhot)

Dagbladen vs. Eureka Internetdiensten
Verschenen in Mediaforum 2000, Nr. 61
 
IN THE NAME OF THE QUEEN

THE DISTRICT COURT IN ROTTERDAM

Case/Docket number: 139609/KG ZA 00-846
Judgement of August 22, 2000

The President, judging in summary proceedings
in the case:

between:

1. ALGEMEEN DAGBLAD B.V., a private limited liability company organized under Dutch Law;
2. NRC HANDELSBLAD B.V., a private limited liability company organized under Dutch Law;
3. TROUW B.V., a private limited liability company organized under Dutch Law;
4. DE VOLKSKRANT B.V., a private limited liability company organized under Dutch Law;
5. HET PAROOL B.V., a private limited liability company organized under Dutch Law;
6. ROTTERDAMS DAGBLAD B.V., a private limited liability company organized under Dutch Law;

having their registered offices in Rotterdam, the Netherlands;

plaintiffs;
proxy attorney: F. Waardenburg;
attorney: J.I. Krikke in Amsterdam;

and:

1. EUREKA INTERNETDIENSTEN, a partnership,
having its registered office in Rotterdam;
2. [name]
residing in [residence]
3. [name]
residing in [residence]

defendants;
proxy attorney: F.A. Tromp;
attorney: D.J.G. Visser in Amsterdam.

Plaintiffs will be hereinafter jointly referred to as “the Newspapers” and defendants will be hereinafter jointly referred to as “Eureka”.

1. The course of the proceedings

This becomes apparent from the following procedural documents, submitted by the parties upon requesting judgement:
- the writ of summons;
- the pleanotes and exhibits of J.I. Krikke;
- the pleanotes and exhibits of D.J.G. Visser.

During the session, the parties had their positions argued more detailed by the attorneys. 

2. The facts

Considering the uncontested statements of the parties and the exhibits, the President departs from the following facts:

2.1
The Newspapers are Algemeen Dagblad, NRC Handelsblad, Trouw, de Volkskrant, Het Parool and Rotterdams Dagblad respectively.

2.2
Each Newspapers operates a website on the internet that contains amongst other things a selection of news reports and articles from their respective papers. Each news report and article has a title. The homepage of each paper contains a complete list of the news reports and articles available on the website.

2.3
Defendant Eureka, of whom the other defendants are the partners, runs a company offering internet services.

2.4
Eureka operates an internet website with the address “www.kranten.com” containing amongst others a page “landelijke kranten”(“national newspapers”).
This page contains a daily renewed list of the titles of news reports and articles on the website of the Newspapers, headed by the names of (amongst others) the national papers published by the Newspapers. The titles and lists of titles match the titles and lists of titles on the respective websites of the Newspapers. The titles and lists of titles reproduced by Eureka are deep links: if one clicks on a title, one is transferred directly to the report on the website of the paper concerned that corresponds with the title concerned, bypassing the homepage of the website of that paper. 

2.5
Eureka also provides the visitors of its website with a news service that consists of sending e-mails on a daily basis containing the latest news in the form of a list of deep links as stated above.

3. The dispute

3.1
The Newspapers demand after change of claim – in short – by provisionally enforceable judgement:

1. To order Eureka subject to a penalty payment with immediate effect to cease and permanently refrain from infringing the Newspapers’ copyrights and database rights and acting wrongfully otherwise, in particular by ordering Eureka to cease and permanently refrain from:
a. reproducing and making public (systematically) titles and lists of titles of news reports and articles owned by the Newspapers, and/or
b. extracting and re-utilizing (repeatedly and systematically) titles and lists of titles of those news reports and articles, and/or
c. inserting hyperlinks systematically to other pages than the Newspapers’ homepages of their websites;
2. To order Eureka subject to a penalty payment to inform its e-mail service customers on its ceasing and to provide the attorney of the Newspapers with a list of all subscribers to the e-mail service and with evidence of the sent report within seven days of service of this judgement;
3. To order Eureka to pay the costs of these proceedings.

3.2
The Newspapers support these claims by the following assertions.
The Newspapers are the owners of the copyrights and the database rights in the (collected) (titles and lists of titles of) news reports, mixed reports and articles in the papers published by them and on the websites maintained by them.
Eureka is lacking the Newspapers’ permission to reproduce (the titles and lists of titles of) those reports and articles.
Thus Eureka infringes the copyrights and database rights of the Newspapers in (the titles and lists of titles of) those reports and articles. Eureka furthermore acts wrongfully in that it profits injustifiedly from the investments of the Newspapers in (amongst others) the selection and drafting of (titles and lists of titles of) reports and articles and also by inserting direct hyperlinks (systematically) to reports and articles of the Newspapers, bypassing the homepages of the Newspapers’ websites by which the Newspapers amongst others lose advertising income. The Newspapers suffer damages as a result of Eureka’s acting for which Eureka is liable.

3.3
Eureka has opposed the provisions asked with the following assertions particularly.
Hyperlinks are the functional core of the world wide web.
Deep links are common on the internet. The so-called search engines also use the phenomenon deep link intensively. Hyperlinks cannot infringe copyright. Alternatively, Eureka can invoke the quotation right or the right to reprint press reports in the press.
Although titles of news reports can be protected by copyright, the reproduction of those titles on the internet for the benefit of hyperlinks referring to those reports is the most appropriate and common way to fill the hyperlink to the report concerned. By placing the reports and articles concerned with these titles on the internet the Newspapers granted implicit permission to use these titles to hyperlink.
Article 15 Copyright Act permits the reprinting of complete news reports having appeared in other media, including their related titles. In article 15a it is stated that quoting in the form of a press survey is a permitted form of quoting. Alternatively these provisions are suitable for analogous application to forms of use at the time not foreseen by the legislator.
Unlike the titles, the lists of titles as a collection do not show “an original character of their own and the author’s personal stamp” that would make them copyright protected works. Nor can the lists of titles benefit from the protection for “unoriginal writings”. Alternatively, the protection for unoriginal writings is not that broad that the Newspapers can oppose the reprinting of a short list of news reports by another medium.
The lists of titles of news reports are not protected by database rights, because a dozen titles of a paper on the internet does not show that there has been a substantial investment in assembling the titles on that paper’s homepage.
Profiting from other people’s efforts can never be a tort in itself without additional circumstances causing wrongfulness. Deep linking is customary and generally acknowledged on the internet. The Newspapers are able to prevent deep linking technically, but apparently choose not to do so.
Sending hyperlinks to subscribers through the e-mail service does not differ in any relevant sense from putting them on the website.
Eureka disputes that the existence of its website on balance is harmful to the Newspapers. It is firmly convinced that on balance kranten.com produces more visitors to the Newspaper’s websites and therefor generates more income than would be the case if kranten.com would not offer its services.

4. The Court’s opinion

4.1
At stake in these summary proceedings is the claim of the Newspapers to prohibit Eureka to deep link from its website with the address www.kranten.com to another page than the homepage of the website of the various papers published by the Newspapers. The Newspapers claim to suffer damage as a consequence of this deep linking because Kranten.com takes over de facto the function of the homepage of the papers depriving the Newspapers of the possibility to disclose the websites of their papers in their own way and to exploit their website. The homepage of the papers contain advertisements which generate advertising income. Such income is dependent of the number of visitors clicking on a webpage with an advertisement.

4.2
The Newspapers publish papers. Every day they select from their papers some twelve reports and articles which they communicate on their website. This availability on the internet enables everybody anywhere in the world with an internet connection possible to receive that information and to use it by filing that information, printing on paper, copying and/or by sending to others. It is possible for the provider to limit such use in the way and to the extent in which the information is released. Eureka has uncontestedly stated that it is technically possible to prevent deep linking. The Newspapers have not used this possibility.

4.3
The Newspapers make said information available by giving a complete enumeration of the titles of the reports and articles, which are reproduced on subsequent pages. Eureka daily reproduces the complete titles from the homepages of several regional and national newspapers and presents a current survey of all titles on its website kranten.com. If somebody clicks the name of a newspaper he leaves the website of kranten.com and is transferred to the homepage of the newspaper concerned. If one clicks a title, he leaves the website of kranten.com and is transferred directly to the article concerned on the website of the newspaper concerned. From that page it is still possible to enter the homepage of that newspaper. Therefore, the homepages of the Newspapers’ websites are by no means made inaccessible by deep linking from the website of kranten.com. For this reason alone it cannot be established that kranten.com takes over the function of the homepage of the Newspapers, nor that it prejudices the exploitation of the Newspapers’ websites.

4.4
With regards to the advertising income it is likely that the existence of kranten.com at the same time has also a promotional effect drawing more visitors to the websites of the Newspapers. Therefore at present it is not likely that the Newspapers suffer real damage. As far as the Newspapers lack income because (most) advertisements have not been put on the most frequented pages such a consequence follows from their own choice. Damage resulting from it cannot be attributed to Eureka. 
The debates on the discussion page of kranten.com are not less edifying than the debatestaking place elsewhere on the internet and at the present it is not likely that the contents of a discussion on the website of kranten.com will cast a slur on the papers whose websites can be visited from kranten.com. Eureka has contested with explanation - and it also does not follow from random checks - that pages of the papers’ websites are not fully loaded if one is transferred from kranten.com. Therefore already in the absence of damage (that cannot be imputed to Eureka) the fact that Eureka profits from the investments of the papers in their websites cannot be considered to be wrong.

4.5
Copyright restricts the right to reproduce data. However, adding a (deep) link from the website kranten.com to the (reports and articles on the) websites of the papers published by the Newspapers cannot be regarded as a reproduction of these works. This also applies to a list of (deep) links to (the reports and articles on) these websites sent by kranten.com to its subscribers. The complete adoption of the list of titles from the homepage of the papers and its incorporation (mentioning the origin) on Eureka’s own website is however a reproduction of these titles and of that list as such.

4.6
Even if it can be assumed that (some of) these separate titles and the mere enumeration thereof as a whole (hereafter: lists of titles) has to be regarded as (a collection of) copyright protected works with an original character of their own carrying the author’s personal stampthese titles and lists of titles can be reproduced completely along with indication of the source by a press medium, pursuant to section 15 Copyright Act 1912 (hereafter: Copyright Act). The website kranten.com can be regarded as a press medium for the purposes of section 15 Copyright Act. Kranten.com after all presents only a current survey of the titles on the websites of various media. It can be regarded as a news medium that periodically (every day) presents a current contents of those media, in which the names of those media are mentioned explicitly. The literal reproduction of the titles and lists of titles with regard to this “table of contents” for the benefit of linking should be considered to be careful and justified in this context and therefore permitted in this context according to generally acceptable standards. All these things moreover amount to press surveys, benefiting from the freedom of quotation of section 15a Copyright Act. There are no substantial differences between the reproduction as a link of the titles on the website of kranten.com and sending those links to subscribers. In this context therefore there is no conflict with the Copyright Act 1912.

4.7
The list of titles on the website of every newspaper is a collection of separately accessible data. Insofar a list of titles can be regarded as a database. The Database Act only grants protection to a collection if its contents is systematically or methodically arranged. A list of titles is primarily a (chronological) survey of the titles of the reports and articles that one will come across (successively) on the pages of the website. Eureka has not argued that this arrangement cannot be regarded as a database in this respect.

4.8
Eligibility for protection as a database presupposes that the contents of the collection shows a substantial investment in qualitative or quantitative respect. Such investment may consist in the deployment of financial resources and/or time, effort and energy in order to obtain, verify or arrange the contents of a database. It cannot be said that the Newspapers have invested substantially in the contents of the lists of titles. Their investment is directed to gathering the reports and articles to fill the newspapers. The titles are invented as headlines. The selection of the reports and articles which will be put on the internet is a matter of minor importance in this respect. Therefore there is no qualitative investment in the drafting of a list of titles. The assertion that seven employees are said to be concerned in the website of a newspaper will be numerically negligible compared to the total number of people that work for a newspaper, and therefore also a substantial investment in quantitative respect is lacking. Therefore there is no conflict with the Database Act.

4.9
Even if the websites of every newspaper as a whole, therefore as a combination of the homepage with the subsequent pages with reports and articles, should be regarded as a database within the meaning of the Database Act, this would not render a different judgement. After all in this respect the extraction and re-utilization of the lists of titles alone cannot be regarded as the extraction or re-utilization of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of the database. The fact that Eureka does this repeatedly and systematically also does not infringe the Newspapers’ rights as producers of the database because, as already considered above under 4.4, at the present it is not likely to judge this in conflict with the normal exploitation of the databases or to cause unjustified damage to the Newspapers’ interests.

4.10
It should be assumed that the introduction of the Database Act has caused the lapse of the protection of unoriginal writings in respect of collections. Thus the Newspapers also cannot derive arguments from that concept in order to prohibit the methods of kranten.com. In view of the connection between the Database Act and the adjustment of the Copyright Act 1912at the same time it is after all unimaginable that the legislator has intended to keep collections, which are neither eligible for copyright protection in the sense of the Bern Convention nor for database protection, under the protective scope of the Copyright Act 1912, as could be assumed in the past. Moreover the exemptions of articles 15 and 15a would apply to the protection of unoriginal writings as well.

4.11
Summarizing it can be said that the way in which a survey of the reports and articles on the websites of various media is presented on the website of kranten.com is a careful way and is not contradictory to the accepted standards. In accordance with the Copyright Act one is allowed to present a survey of the reports and articles in various media in this manner. Also a conflict with the Database Act is absent, because the Newspapers do not invest substantially in the drafting of the lists of titles of their reports and articles. Nor has it become apparent that deep linking from kranten.com to the websites of the papers is harmful to the Newspapers. The provisions asked for shall therefore be refused.

4.12
The Newspapers, as the party found in error, will be ordered to pay the costs of these proceedings.

5. The decision

The President,

denies the provisions asked;

orders the Newspapers to pay the costs of these proceedings estimated up to this judgment on the part of Eureka on NLG 400 in court taxes and NLG 2,500 in attorneys fees.

This judgement was delivered by J. Mendlik, President, in the presence of M.A.M. Baars, Clerk of the Court.

Pronounced in open court.


Published 20.09.2000