Getty stuck in catch-22 over Google competition

Getty has become the latest business to take its complaints, against search-engine giant Google, to anti-trust regulators because it believes that Google is deliberately favouring its own image services, at the expense of its rivals. IP expert, Oliver Smith examines the case in this Keynote.

Getty Images has been granted “interested party status” by the EU Commission in a competition claim against Google. The initial claim focused on Google unfairly giving preference to its own shopping websites over those of competitors in its search results, using its dominant position in search services (where it has a 90% market share) to drive traffic to its own sites and away from those belonging to its competitors.

Getty Images’ complaint relates to similar practices in search results for photographic images. Getty has protested that not only does Google promote its own image rights sales business at the top of its search results while relegating Getty to the bottom of the page or even the next page, but that it also uses images from Getty’s sites to promote its own sites, – so that clicking on a Getty photo will simply take a person straight to the Google images site. Getty also complains that the high-quality images Google reproduces from Getty’s website in search results make it extremely easy for people to click and copy those images without paying a licence fee to Getty, meaning that Google could be allowing massive “theft” of Getty material to take place.Unfortunately, Getty finds itself in a “catch-22” situation. Google obtains these images by a common practice called “scraping” by sending robots crawling around the web indexing content to make it searchable on Google. Website owners can block these robots to prevent their content being copied and reproduced on other websites. However, this would be a drastic step for Getty, as it would make them virtually invisible on the web and result in even less traffic to its website. Once Getty allows a robot onto its site, it largely loses control over how its content is used. It has been held in recent cases that failing to block robots amounts to consent to use a site’s content for search engine results and that they are not bound by the site’s terms and conditions of use, preventing content owners such as Getty from bringing breach of contract claims against search engines. The implied consent also protects Google from claims of copyright infringement. If Google reproduces Getty Images unlawfully produced on third-party websites, it is protected from copyright claims by the E-Commerce Directive, unless it is notified that that the image is unlawful and fails to remove it.Getty is therefore hoping that the EU Commission can use competition law to curb what it believes are Google’s unfair practices where intellectual property law has failed to provide a solution. Given that the original claim against Google relating to its shopping websites has been going since 2010 and is still to be resolved, it looks like Getty is set for a long wait.