Meta Search Engine Gaspedaal.nl Walks Free
Court of Utrecht in summary proceedings, 21 November 2007,
LJN: BB8341, Wegener ICT Media B.V./Innoweb B.V.
The Facts
Innoweb operates a so-called 'meta search
engine' through the website Gaspedaal.nl. On this search engine
the visitor can search the used car offers on seven different car
sites, including the site of the claimant Wegener: Autotrack.nl,
with the help of a number of selection criteria. On the basis of
the 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 relevant used car from the AutoTrack
database, with a deep link to the relevant advertising page on
Autotrack.nl.
Database?
The difference with search engines for houses is
that the websites of the estate agents were only a spin-off of
their normal activities, and were therefore not protected by
database law. However, the website Autotrack.nl is not a spin-off,
but is part of Wegener's core business. Wegener's
investment of - as it maintains - 3.5 million euro in Autotrack.nl
is sufficiently substantial and therefore the court in summary
proceedings considered this site to be protected as a database.
Gaspedaal.nl does not use a substantial part of the Autotrack
database. In the list of results as result of a search request, it
only uses a small portion of Autotrack's database. However,
Gaspedaal.nl does regularly use a non-substantial part of this
database in its search results. This constitutes infringement only
if this non-substantial use by Gaspedaal.nl is damaging on the
normal exploitation of Autotrack.nl or if by this use unjustified
damage is inflicted upon the producer of that site (Wegener).
However, Wegener has insufficiently substantiated its claim that
the number of visitors of Autortrack.nl is declining drastically as
a result of the launch of Gaspedaal.nl. According to Gaspedaal.nl,
its site may even have a magnet effect for that site by the
click-through option to Autotrack.nl. Therefore the court in
summary proceedings has ruled that the site Gaspedaal.nl does not
inflict damage on the exploitation of Autotrack.nl and this use,
and therefore does not infringe the database rights of Wegener.
No Direct Competitor, So Not Unlawful
Because the results list of Gaspedaal.nl is not a simple repetition
of the results list of Autotrack.nl it does not infringe the
limited copyright protection on this result list
(geschriftenbescherming / protection of documents) of Autotrack.nl
either. This limited protection against derivation follows from the
fact that Wegener asked protection for a 'rudimentary'
document, consisting of technical data and figures.
Gaspedaal.nl is also not acting unlawfully. According to the
court in summary proceedings, Gaspedaal.nl is no direct competitor
of Wegener because Gaspedaal is not a car site but a meta search
engine. Furthermore, Gaspedaal.nl clearly indicates on its home
page what sites it searches (including Autotrack.nl). Therefore
there is no deception or damage to reputation for Wegener.
However, in our opinion it could well be argued that in
practice, on both websites, Gaspedaal.nl and Autotrack.nl ,the same
services are offered. After all they are both websites on which
advertisements for cars are offered to visitors. As a direct
competitor of Autotrack.nl, the court in summary proceedings might
well have found the website Gaspdaal.nl to be unlawful.
Conclusion
Even if you have a database right, it remains
difficult to defend yourself against a meta search engine that
systematically "picks" data from your website. Wegener,
for example, has not succeeded in demonstrating infringement of its
database. The court in summary proceedings was susceptible to the
argument of Innoweb that the site Gaspedaal.nl might have a magnet
effect because of the click-through option to Autotrack.nl, and
that therefore Wegener would not suffer any damage by this
requesting of non-substantial parts from its Autotrack
database.
Originally, the protection under the Database Act was created to
protect the investments of producers of databases. Wegener can only
earn back its investments in the Autotrack database by the income
from the advertising on its home page. However, the click-through
option on Gaspedaal.nl circumvents the home page of Autotrack.nl.
It is therefore likely that in the future the home page of
Autotrack.nl will be visited less often because of the launch of
Gaspedaal.nl. As a result, Wegner will miss out on important income
from advertising. On the basis of this judgment database law thus
offers Wegener insufficient protection to earn back its
investments. This indicates a lacuna in the protection offered to
producers of databases under the Database Act.
Wegener ICT Media B.V. instituted proceedings on the merits
against Innoweb B.V. on 15 January 2008.