Meta Search Engine Gaspedaal.nl Infringing
Court of The Hague, 11 February 2009, Wegener ICT Media
B.V./Innoweb B.V.
The Facts
Innoweb exploits a so-called 'meta search engine'
through the website Gaspedaal.nl (gaspedaal is Dutch for
gas pedal). With this search engine the visitor can search the used
car offers of seven different car sites, including that of the
claimant Wegener, Autotrack.nl, with the help of a number of
selection criteria. On the basis of a search request, Gaspedaal.nl
produces a list of results, in which it copies the photograph,
brand, type, year of manufacture and odometer reading of the used
cars from the AutoTrack database, with a deep link to the relevant
advertising page(s) on Autotrack.nl.
Database?
The Autotrack.nl database of Wegener contains on average more than
200,000 advertisements, and 800,000 various advertisements are
offered on an annual basis. Wegener's investment into
Autotrack.nl is sufficiently substantial and therefore the Court
considered this website to be protected as a database. The
arguments of Innoweb against the invoices of Wegener largely did
not hold water. The discussion was about investments of millions,
and this is what the Court deemed to be substantial.
Extracting and Reusing A Substantial Part?
Per search request, Gaspedaal only displays a small selection from
this database in its results list. The database of Wegener is
searched real time: per search request the results are
retrieved from the database of Wegener.
According to the Court, this process was
covered by the definition of 'extraction and
reutilization', which must be interpreted broadly according
to European case law. The Court held that Gaspedaal.nl was not
using a substantial part of the database of Wegener. Searching
the database in its entirety does not qualify as use, said the
Court, and it must be assessed per search request whether the
extraction and reutilization concerns a substantial part.
Unjustified Damage by Repeated and Systematic Extraction
and Reutilization of Insubstantial Parts?
The Databases Act explicitly also offers protection against the
repeated and systematic extraction and reutilization of
insubstantial parts. The Court has applied this test. In this case,
repeated extraction does not lead to a reconstruction of the
database of Wegener, and is therefore not contrary to normal
exploitation. The Court found that in this respect no unjustified
damage was caused to the legitimate interests of Wegener.
The question remains whether the repeated reutilization of the
search results causes unjustified damage to the interests of
Wegener. To find this out, the Court first assessed what data
exactly Innoweb was copying. Out of the maximum of 24 data per car,
Innoweb was copying the seven most important ones (brand, model,
design, year of manufacture, odometer reading, price and minimized
photograph). Wegener had argued without contradiction that the
investment to obtain these seven core data is substantial compared
to the investment still necessary to obtain the rest of the data.
On this basis, the Court held that the data reutilized by Innoweb
represent a substantial investment, and that the part copied was in
any case qualitatively substantial.
The Court considered that Innoweb was causing serious damage to
the investment of Wegener, because the cumulative effect of the
many search requests is that a substantial part of the database of
Wegener is made available to the public. Innoweb had still argued
that its meta search engine worked precisely to Wegener's
advantage, because it directed additional visitors to Wegener's
website. The Court considered that it was up to Wegener to
determine whether the advantages of reutilization, if any, outweigh
the disadvantages, and whether reutilization is allowed.
Analysis and Conclusion
The Court went through the various elements of the Databases Act
one by one. With most elements this went well, but in the test of
the 'repeated and systematic extraction of insubstantial
parts' the Court mixed up a few elements. The Court did not
assess whether Wegener was really suffering damage, but thought
that this followed from the cumulative effect of the many search
requests. This does not seem to be the correct criterion. The
opinion that it is up to Wegener to weigh the advantages of
reutilization against the disadvantages also does not seem to fit
in well with an assessment to be made by the Court of the damage to
Wegener's interests. All in all, this judgment is not clearly
reasoned in this crucial respect.
The reasoning followed by the Court could have big consequences
for other search engines on the Internet. If one fills in another
search engine for Gaspedaal.nl in the judgment - Google or Yahoo,
for example - the consequence would be that these search engines
too would no longer be allowed. From the point of view of freedom
of information, one might wonder whether it is a desirable
development that information that is offered to the public
publicly, at no charge and without password, could not be
reutilized by search engines.