Court of The Hague, 11 February 2009, Wegener ICT Media B.V./Innoweb B.V.
After the Court had ruled in preliminary relief proceedings at the end of 2007 that the search engine Gaspedaal.nl could search and partly copy the used car offers of Autotrack.nl (and other car sites) Newsletter January 2008, the Court has now ruled in proceedings on the merits that this is no longer allowed.
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.
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 Newsletter KVdL January 2009. 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.