As I noted yesterday Agence France-Presse's suit against Google News is silly.

But just because it's silly doesn't mean it can't be won.

Come along after the break and see how that might happen.

The suit is based on the idea that Google makes editorial judgements. Google's response it it does no such thing.

But it does make editorial judgements, at least at Google News.

Unlike the situation elsewhere at Google, Google News decides which sites are news sites, which sites are not, and sends its robots out to spider the Web accordingly.

For instance, Google News does not believe Corante is a news site. This story will not be spidered there. This is an editorial judgement.

The plaintiff can show Google News is arbitrary in these judgements. For instance, Exhibit A is on Google News today, a spectulative story on the new Treo from EnGadget. Google thinks this speculation is newsworthy.

Note that EnGadget does not kill trees. EnGadget is a blog site, just as this is a blog site. It is no different in fact from Corante. But Google News has made an editorial decision to spider EnGadget, and not to spider Corante. This is an arbitrary decision. The source and process behind this decision is closed. But it is enforced, technically, so Google's response that it has no technical means to grant the plaintiff relief is false.

We now turn to. Exhibit B. This is a "story" from Vincent Fiore at RenewAmerica.Com. RenewAmerica.com is not, objectively, a news site. It is, in fact, a right-wing propaganda site. It is only one of several such sites that Google News spiders. Google News has made an editorial decision to spider these sites. (It does not spider equivalent sites from the left.)

So you see, your honor, Google News can make editorial decisions. It does make editorial decisions. Google News decides, and enforces, editorial decisions on which sites it thinks publish news and which don't. Its process for doing this is opaque, not visible to those affected by it, and thus arbitrary in nature.

It could thus have easily, in response to a letter, have stopped spidering Agence France-Presse. It could have said, in its editorial capacity, "this is not news."

The plaintiff rests.

Now to to Google's defense.

Exhibit A for the defense. This is an Agence France-Presse story published on its customer site, Velo News. It has been spidered by Google News, obviously without the express written permission of Agence France-Presse.

But is it possible for Google News not to spider this story? Yes, it is. That would require only AFP to include a robots.txt file on stories it sends affiliates, instructing those pages not to allow spiders or robots to see them.

Of course, if AFP did create such robots.txt files, it could hide all its files from view, and the suit would be moot, wouldn't it? Relief is in the plaintiff's hands, and the cost to implement it is nearly zero.

The defense rests.