IP and Social Networks: The Paris District Court Invalidates IP Clauses of Google+ Terms of Use

It’s been rough weather for Google in France. Three weeks after the French ‎Data Protection Authority imposed a record fine against Google for non-compliance with the GDPR, the Paris District Court (“Tribunal de Grande Instance”) invalidated 38 clauses of Google’s Privacy Policy and Terms of Use for Google+, the Internet-based social media network owned and operated by Google.

This decision was rendered on February 12, 2019 in an action that was initiated against Google Inc. in 2014 by an old French consumer not-for-profit organization, UFC QueChoisir. It took 4 years for the case to get to trial, and an additional 11 months to issue a 136 page long decision, which is quite unusual according to French standards.

The court invalidated 38 of the Privacy Policy and Terms of Use clauses for Google+, which amounts to more than half of the total number of clauses.  The clauses were invalidated on various grounds, including non-compliance with the Consumers Code and the Data Protection Law. Google claimed that the Consumers Code did not apply because its Google+ services are provided free of charge.  The court disagreed, finding that the criterion is whether the services are being provided in consideration of something, which, in this case, was Google’s ability to use the information gathered from its consumers to sell targeted advertising.

Among the invalidated clauses include three IP clauses discussed below:

Clause 16 – General License Granted to Google for Content Submitted by Users

Clause 16 of Google+’s Terms of Use provides that users grant Google a worldwide license to use all content submitted by the users for the entire duration of copyright protection, for use in connection with Google’s existing services and for new services that Google may offer in the future.  The court held that this clause was contrary to two rules of French copyright law.

First, ‎the global assignment of rights on future works is prohibited under article L.131-1 of the Intellectual Property Code. This old rule of French copyright law was designed to protect young artists and help them free themselves from publishers or producers who may otherwise have required exclusive publication rights to their future works. This rule still exists today and is used for example to invalidate assignment of rights clauses that can be found in some employment contracts. ‎Clearly, the clause in the Google+ Terms of Use refers to future works globally, since it does not point to any particular work. What is less clear is whether there is an assignment of rights, because the clause grants a license of use and not an assignment.

Secondly, there is a requirement under French copyright law that any grant of right must specify which rights are granted, the territory, the duration of the license, and the authorized use, as required under article L.131-3 of the Intellectual Property Code. The practical consequence of this rule is that in French contracts with authors, grant clauses are usually quite lengthy.  Here, the court held that Clause 16 was too vague and therefore did not comply with article L.131-3, despite the fact that the duration was clearly the entire life of copyright protection, and the territory was clearly worldwide. Although Google explained that the rights being granted were “for the limited purpose of operating, promoting, and improving our Services, and to develop new ones,” ultimately the court found that this “limited purpose” was too broad.

Clauses 13 and 14 – U.S. Style Copyright Infringement Management Terms

Google states in Clause 13 of its Google+ Terms of Use, “We respond to notices of copyright infringement and terminate accounts of repeat infringers according to the process set out in the Digital Millennium Copyright Act [DMCA].” Clause 14 provides that persons who think their copyrights are being violated may submit DMCA notices in accordance with Google’s policy.

The Paris court held that these two clauses ‎address copyright infringement exclusively in light of U.S. law. Since French consumers are not familiar with U.S. legislation and case law, and because Google, according to the French judges, refuses to follow rules other than U.S. rules, the clauses create a significant imbalance, are abusive for purposes of the Consumers Code, and are invalid.

The Practical Effect of Paris Court’s Decision

Although the judgment rendered by the Paris Court is not immediately enforceable, the court ordered Google to make the judgment public within one month by means of a hyperlink on the home page of its website and app.  The court also noted that a daily penalty of 5,000 euros would be imposed for non-compliance.

One might take the view that the decision will have limited impact since Google announced last year that it would sunset the consumer version of its social media network. However, the impact of this decision is potentially much broader, because these clauses do not only apply to Google+, but they also belong to the common terms and policies which govern Google services generally.  The decision also addresses violations of the Data Protection Law.  Stay tuned for our comments on those issues, which will be published soon on our Security, Privacy and the Law blog.

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