Tina van der Linden-Smith*
Google - Searching a legal context
JurPC Web-Dok. 259/2004, Abs. 1 - 40
|A great tree attracts the wind, in the real world as well as in cyberspace. Ever since the existence of Google was brought to my attention, I have hardly ever used another search engine. And I am not the only one. In the Netherlands Google has a market-share of 68%, internationally this is 56,4%(1) - although different sources give different figures.(2) Google Inc. was founded in 1998 by Larry Page and Sergey Brin, and is now a company with some 1900 employees, 15 of whom are lawyers. Recently, Google announced the initial public offering of 19,605,052 shares, at a price of $ 85.00 each.(3)||JurPC Web-Dok.|
259/2004, Abs. 1
|Google claims to handle more than 200 billion queries daily. Google is fast, very fast. Most of the time, the search results appear on your screen in less than half a second. Google uses its so-called PageRank technology to order the results according to their relevance for the query. The idea is that the links to the most relevant websites are listed first. In general this works reasonably well from a user's point of view. Most users do not look beyond the first ten or twenty hits, because these almost always include a website that is relevant enough.||Abs. 2|
|This is what Google says about how its PageRank technology works:||Abs. 3|
|"PageRank performs an objective measurement of the importance of web pages by solving an equation of more than 500 million variables and 2 billion terms. Instead of counting direct links, PageRank interprets a link from Page A to Page B as a vote for Page B by Page A. PageRank then assesses a page's importance by the number of votes it receives.||Abs. 4|
|PageRank also considers the importance of each page that casts a vote, as votes from some pages are considered to have greater value, thus giving the linked page greater value. Important pages receive a higher PageRank and appear at the top of the search results. Google's technology uses the collective intelligence of the web to determine a page's importance. There is no human involvement or manipulation of results, which is why users have come to trust Google as a source of objective information untainted by paid placement."(4)||Abs. 5|
|In this article I will give an overview of the most important legal disputes that Google is or has been involved in.(5)||Abs. 6|
|The legal battles concentrate around the following subjects (with the following opponents): placement on the PageRank (webpage-owners who want to get a high placement), patent-law (competitors claiming that Google infringes their patents), trademark law (trademark-owners claiming that Google's advertisements infringe on their trademarks), hyperlinks (copyright-owners claiming that their copyright is violated by Google's links, or parties advocating that certain websites may not be found by a search-engine) and privacy (organisations that are concerned about the use of personal data collected from users).||Abs. 7|
|C o n t e n t s|
|Websites have a crucial interest to be placed, in connection with the right key-word, high in Google's PageRank. As most users do not look beyond the first ten or twenty hits, your website is simply not found if you are not included in the top-ten or top-twenty. A phenomenon called "linkspam" developed: the application of all kinds of tricks with the sole aim to end up high in Google's PageRank. Linkspam includes techniques as cloaking (showing a different page to the indexing-crawler than to human visitors), redirects (redirecting visitors to another page), doorway-pages (creating many nearly-empty pages that only purport to achieve a high ranking), creating linkfarms (a whole network of inter-linking websites, that aim to boost each other's ranking by their large number of links to each other) and pagejacking (copying another website and then submitting it as one's own to a search-engine).(6) These, and other tricks are prohibited by Google.(7) There are companies, called Search Engine Optimisers and Page Rank Optimisers,(8) that earn a living on boosting their clients ranking at search engines. How this is done exactly, is of course the trick of the trade.||Abs. 8|
|Google can react to linkspam by, e.g. after a complaint via the spam-report facility,(9) removing the website in question from the ranking altogether, by way of punishment.||Abs. 9|
|A company called SearchKing sold text-links to popular websites, in order to get them a higher place in the PageRank. By way of punishment, Google removed SearchKing from its index altogether. SearchKing went to Court, accusing Google of abuse of power, and stiffling potential competition. But the judge found that Google's PageRank consitutes an "opinion", a subjective expression of Google's opinion about the value of a web page, that is protected by the First Amendment.(10)||Abs. 10|
|This implies that Google has enormous power, it can, literally, make or break companies by giving them a high or low place on the PageRank. Therefore, it is no surprise that for this and other reasons a complaint against Google was filed in December 2003 with the Federal Trade Commission's Bureau of Competition.(11) Google is accused of, put briefly, abusing its market-leadership on the market for online advertisements (see below). Also, the argument is heard that perhaps Google should be regulated by the law, as being a public utility.(12)||Abs. 11|
|In the domain of patent law, it is no so much the PageRank technology, that is the key to Google's business success, that is at stake. By the way, rumour has it that Google holds an exclusive license to use this technology only until 2011. PageRank was invented by Google-founders Larry Page and Sergey Brin when they were still studying at Stanford University, which is why Stanford University owns the patent.(13)||Abs. 12|
|What is at stake is the way of advertising. With their "bid for placement" and "pay-for-performance" (account management technology), Google is accused of infringing patents owned by their competitor Overture. Overture filed suit in April 2002. For more than two years, apart from a "demand for jury trial",(14) nothing more was heard about the case. Bets were made on how this case would be decided.(15) In the meantime, Overture, including the pending law-suit, was taken over by one of Google's main competitors, Yahoo. On August 9th, it was announced that Google and Yahoo had reached a settlement.(16)||Abs. 13|
|The Overture patent comes down to this: the more someone bids for a keyword, the higher the link to his website is placed in the ranking for that keyword. Now, Google's AdWords Select program multiplies this bid with the so-called "clickthrough rate", and thus works in a slightly different way. Another difference is that paid links are represented by Google in a seperate column, on the right hand side of the screen, whereas in the case of Overture, the search results themselves were involved - so that the user is not necessarily aware of the fact that the highest bidder instead of the most relevant site (according to whatever criterion) is placed on top.(17) Also the fact that advertisers are required to pay only when their link is clicked upon (pay-for-performance) is allegedly an infringement of a patent owned by Overture.||Abs. 14|
|On the left-hand side of the screen the PageRank: the list of websites concerning the page rank technology (because "page rank" was typed in as search-word). On the right-hand side the "sponsored links", the paid links triggered by the keyword "page rank".||Abs. 15|
|Recently, Google was accused by Affinity Engines to have stolen the code of the Orkut-network (see below).(18)||Abs. 16|
|A second main area of the law that is the battleground of litigation against Google is trademark law. The object of the disputes is mostly Google's AdWords advertisements. As was seen above, if a certain keyword is typed in by a user, advertisements that are possibly (hopefully) relevant to that particular user appear in a separate column, to the right-hand side of the search results. Advertising companies can submit such "AdWords" (i.e. words that trigger their advertisement) to Google. Now, the problem rises when a company submits a trademark owned by a competitor as AdWord. The question is whether the submission by a company, and the acceptance by Google, of an AdWord that is a trademark of a third party, constitutes an infringement on that trademark.||Abs. 17|
|Google's trademark policy says this:||Abs. 18|
|"As a provider of space for advertisements, we cannot arbitrate trademark disputes between advertisers and trademark owners. As stated in our Terms and Conditions, advertisers are responsible for the keywords and ad content that they choose to use. We encourage trademark owners to resolve their disputes directly with our advertisers, particularly because the advertisers may have similar advertisements on other sites.||Abs. 19|
|As a courtesy, we are willing to perform a limited investigation of reasonable complaints. Please note that any such investigation will only affect ads served on or by Google. Trademark claims can be filed at any time. The trademark owner is not required to be a Google AdWords advertiser in order to file a claim."||Abs. 20|
|In France, Google was found guilty of trademark infringement in the "Bourse des vols" case.(19) Google has appealed against this decision. Soon after, it became known that also the French fashion trademark Louis Vuitton had taken steps against Google on the same grounds.(20) And also in the United States, Google was sued over "American wallpaper" and "American blind", allegedly trademarks owned by the American Blind and Wallpaper Factory.(21) Google argues that "American blind" and "American wallpaper" are generic terms. Google now has taken the initiative and asked a court whether or not its AdWords program violates trademark law.(22) And while this question is still undecided, the American Blind and Wallpaper Factory has gone to court.(23) And then there are Pets Warehouse in the United States,(24) insurance company AXA in France,(25) and Metaspinner Media in Germany(26) with similar complaints.||Abs. 21|
|These cases are all still undecided. Google argues that trademark owners should sue the infringing competitor, not the search engine that places the ads.(27) But as Google earns a living by selling those ads, it remains to be seen whether or not Google too is guilty of trademark-infringement when a trademark is used illegally to trigger an advertisement by a competitor. This is different in case a competitor's trademark is used as a metatag or as hidden text on a web-page, in order to achieve a higher place in the ranking (see above).||Abs. 22|
|But Google too is plagued by violations of its own trademark, by the "adult search site" Booble. Booble says it is parodying Google, but Google cannot see the fun of it. It is not known whether or not Google has gone to court yet, but some threatening emails have been sent summoning Booble to take its website off the air and to transfer the domain-name to Google.(28) Booble is still there,(29) and, as we see more often in cases of bad "jokes" or illegal content on the internet, the publicity of litigation often does more harm than good.||Abs. 23|
|In Norway, Google missed the boat registering the domain-name google.no. To this day, the domain-name www.google.no is used by an online shop of sunglasses.(30) And recently an ICANN arbitration panel decided that the domain name Froogles.com was not "confusingly similar" to Google, and therefore is allowed to continue its business as Web shopping site.(31)||Abs. 24|
|Google's business is to provide links. Links to websites, where hopefully the information can be found that the user is looking for. Now, on the Internet there is a lot of information available that is illegal for some reason, among others because the contents is contrary to the law (e.g. inciting hate), or contrary to someone else's interest (e.g. containing information on how to sabotage the German railway system), or infringing on someone else's right (e.g. copyright), etc.||Abs. 25|
|To start with the last: the German Landgericht Hamburg found in September 2003 that the inline links (thumbnails) that the Google News-service uses on www.google.de constitute a copyright-infringement.(32) Because this judgment was appealed it is not in force yet, and the links can still be seen.(33) Also, the fact that Google makes cache-copies of sites is not undisputed from a copyright point of view. Until now, no legal action has been taken, probably because use of a "NOARCHIVE"-tag by the website-owner/copyright-holder can prevent caching.(34)||Abs. 26|
|Kazaa has achieved that Google removed from its index a number of sites that distributed a hacked version of the Kazaa program.(35) Some versions of so-called Kazaa-Lite were at stake, versions without pop-up ads and without spyware. Searching in Google on "Kazaa" now triggers the following announcement on every result-page:||Abs. 27|
|In response to a complaint we received under the Digital Millennium Copyright Act, we have removed 4 result(s) from this page. If you wish, you may read the DMCA complaint for these removed results.||Abs. 28|
|with the underlined parts hyperlinked. By clicking on the DMCA complaint it can be found out which links exactly were removed on request of Kazaa.||Abs. 29|
|Google also had its own version of the Scientology dispute. The Church of Scientology had sent Google a list of more than 120 webpages that allegedly infringed upon Scientology's copyright, demanding that they be removed from the index. Google complied with this request, upon which a storm of indignation broke loose. The well-known anti-Scientology website Xenu.net, that before turned up on fourth place on a search on "Scientology" was one of the websites that was removed. Upon closer inspection it turned out the Xenu.net did not violate Scientology's copyright at all. The DMCA could thus be misused to remove unwelcome criticism from Google's ranking, thus making it a lot less accessible. Speaking of "chilling effects" and "freedom of speech"! Now, the DMCA does have a provision, a so-called "counter notification" to reverse this, but there is one catch: by using the counter notification, the website-owner in question submits himself to the jurisdiction of the American courts. "Pretty scary stuff", according to Danny Sullivan, editor of SearchEngineWatch.(36)||Abs. 30|
|In order to avoid litigation, Google is said to have removed on behalf of Deutsche Bahn links to and cache-copies of an article in the German magazine Radikal, in which sabotage of the German Railways is explained.||Abs. 31|
|Also, Google is said to have removed, again to avoid litigation, some websites from the indices of Google.de and Google.fr. Neo-nazi and racist sites are said to be removed. Google does not want to make public which sites exactly were removed, nor do they want to say who asked them to do so. Using www.google.com the sites in question can still be found,(37) doubtless because in the United States free speech is cherished to the point where such sites are not considered illegal. Thus, despite pressure by interest-groups, Google has declined to remove anti-semitic websites from its index.(38)||Abs. 32|
|The latest news is that Google is sued for carrying advertisements for sites offering online gambling, which in some states, notably California, is illegal.(39)||Abs. 33|
| In February 2003, Google was nominated by the Google Watch website(40) for the Big Brother Award, an award
that is conferred annually by the English human rights organisation
Privacy International. Google Watch grounded its nomination of Google
on the following nine privacy-objections:|
1. Google's cookies don't expire until 2038.
2. Google records everything they can
3. Google retains all data indefinitely
4. Google won't say why they need this data
5. Google hires spooks
6. Google's toolbar is spyware
7. Google's cache copy is illegal
8. Google is not your friend
9. Google is a privacy time bomb.(41)
|Google was not selected as a finalist, from which it can be concluded that Privacy International did not see Google as one of the main privacy threats on the net.||Abs. 35|
|However, this changed with the introduction of two new services that caused a lot of disturbance earlier this year: the virtual community Orkut and the free email service Gmail.||Abs. 36|
|Orkut(42) is an online friends network, an online community. One can become a member by invitation only. Once invited, many details about yourself can be submitted: your interests, your friends, which films and which books you like, etc. And then, you can communicate with your friends, and your friends' friends, and so on. Orkut immediately grabs the copyright over anything that is posted on the Orkut network.||Abs. 37|
|Gmail has, so far, only been announced. It will be a free web-based e-mail service, offering a large mailbox to its users. In return, Gmail automatically scans your emails, retains them till the end of time, and adds advertisements on the basis of scanned words in the mail. So if you mail with a friend who has just become a mother, you can expect advertisements from nappies, information on cry-babies etc. etc.||Abs. 38|
|Privacy International has filed a formal complaint against Google's plans with seventeen national privacy-authorities, and with the European Commission.(43) The automatic scanning of all emails is said to erode confidentiality of the mail, and set a very wrong trend. Also, objection is made against keeping (and being unable to delete) mail. And finally, it is not clear whether or not (e.g. through the Google-cookie) the Gmail information is linked to a user's surfing behaviour or to the personal data that have become known through the Orkut-network. Earlier, some privacy organisations (including Privacy International) addressed their objections to Google by means of an open letter.(44)||Abs. 39|
| At first sight, Google seems like the American dream come true. Two
smart guys with a good idea raise a very succesful company in a very
short time. That incites fascination, admiration and also jealousy.
There has been a lot of commotion around Google's IPO. On their first
day on the market, Google's shares gained 18%, and Brin and Page each
cashed about 43 million dollar for the company that they started only
six years ago.(45) Big business!
259/2004, Abs. 40
(2) 35% volgens www.sewatch.com/reports/article.php/2156431.
(5) In writing this article the overviews on Search Engine Watch ( http://searchenginewatch.com/resources/article.php/34791_2156541) and Search Engine Guide ( http://www.searchengineguide.com/news/Search_Engine_Industry/Legal_Issues/index.html) were very helpful.
(8) See, among others, http://www.se-optimizer.com/. If you search in Google on "search engine optimizer" you get a whole list of this kind of companies.
(10) See http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1147, and http://news.com.com/2100-1032-1011740.html
(12) About this argument see Adam Thierer and Clyde Wayne Crews Jr, Google as a Public Utility? No Results in This Search for Monopoly, te vinden op http://www.cato.org/tech/tk/031114-tk.html.
(14) to be found at http://news.findlaw.com/hdocs/docs/overture/ovrtrgoogle40402cmp.pdf.
(19) The (French) text of the verdict can be found via: http://www.legalis.net/cgi-iddn/french/affiche-jnet.cgi?droite=2003/actualite_10_2003.htm.
(33) In a similar case, an American court had decided that inline links by search-engine Ditto.com to photo's made by Kelly consituted copyright-infringement, but that use of small inline links (thumbnails) did not: Kelly v Arriba Soft, U.S. Court of Appeals for the 9th Circuit Court, desicion 280, to be found on http://www.netcopyrightlaw.com/pdf/0055521.pdf
(42) The (in Dutch particularly) strange name comes from the Finish Google-employee who invented it: Orkut Buyukkokten.
|* Dr. Tina van der Linden-Smith ist Lehrbeauftragte für Recht und Informationstechnologie an der Universität Utrecht (Niederlande).|
|[online seit: 22.10.2004 ]|
|Zitiervorschlag: Autor, Titel, JurPC Web-Dok., Abs.