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 Update 35: December 13, 2005

1. Regulating Search?: A Symposium on Search Engines, Law, and Public Policy

The Information Society Project at Yale Law School presented "Regulating Search?: A Symposium on Search Engines, Law, and Public Policy," the first academic conference devoted to search engines and the law on December 3, 2005 at Yale Law School in New Haven, CT. The symposium brought together technologists, policymakers, entrepreneurs, executives, lawyers, computer scientists, and activists to discuss the emerging field of search engine law. More information on the conference can be found at Eric Goldman posted some notes he took at the conference in his Technology and Marketing Law Blog.


2. AdSense Extortion in Germany

M. Adams of has been slowly increasing the AdSense revenue for some German web sites over the last few months. Last week he sent e-mails to the operators demanding money for his "service" in the future. If they choose not to comply he would increase the clicks so that Google would take notice and possibly cancel the website owner's AdSense account.

Loose translation of the e-mail:

Dear Mr. XY,

you probably have noticed an increase in your AdSense revenue during October. This is a direct result of us including your website in our test program.

For details see

As you can learn from your latest payments from Google, our concept works very well. We have about 1000 German employees to test web sites...

With their help we are able to increase the number of web site visitors and income from advertising.

We are also able to "destroy" AdSense accounts by increasing the click rate so that Google will notice it and delete the account.

As you surely can understand, we want to participate in the revenue increase. So far we have no contractual relations. There are two options for you:

You reject our offer and refuse to pay us money. In this case we will stop our activities. However, you risk loosing your latest revenue and your AdSense account.

You accept our offer and pay us 50% of the increased revenue. We then will continue to slowly increase the revenue.

I believe it is an easy decision for you. The second alternative is a win-win situation for both of us.

Please let us know your decision immediately.


M. Adams


The case was discussed in more detail in the abacus forum. Google has been notified by several webmasters and they have already tracked down a Mr. Lutzenberger as the real person behind the scam.

  • December 3, 2005: Geschäftsmodell AdSense-Missbrauch, Heise:
    "Wie verschiedene Teilnehmer des Werbeprogramms Google AdSense berichten (1, 2), manipuliert ein angeblicher Michael Adams der in Panama ansässigen Firma die Zugriffe auf AdSense-Werbeeinträge."


3. Search Engines and Anti-Trust-Law

Obviously Google controlls a large share of the search market (about 40-50% in the USA, 70-80% in Germany). A web site not listed in Google is as good as no web site these days. Google has the power to influence the selection and immediacy of Internet purchases in all industries. Despite this apparent monolopy there has been very few discussion of anti-trust law and the search engine market. Shouldn't the big question be: Is Google obliged to include a website in its index? So far, I only know of three articles on this topic in Germany.  I'm currently working on an article on the subject and would welcome opinions from Links & Law readers. Especially, if you are not from Germany, I would be very interested in publications, I might not be aware of yet.

Google is under no obligation to include every web page on the Internet, including any web pages from Search King’s site. Nor is Google obligated to maintain in its index any web pages that it once decides to include. (, for more information on the SearchKing v. Google lawsuit see: We will see if this opinion is true under German antitrust law. I plan to publish the article in the first half of 2006 and a comprehensive overview of my findings will be posted on the Links & Law website.


4. Torrent Search Engine Links

On Wednesday, 23 November 2005, Bram Cohen, the founder and chief executive of BitTorrent and Motion Picture Association of America Chairman Dan Glickman announced a collaboration with the goal of inhibiting film piracy.

BitTorrent is a peer-to-peer (P2P) file distribution application that can be used to distribute files without the permission of the copyright holder. Cohen said will remove all links to pirated content owned by MPAA companies from its search engine. "BitTorrent Inc. discourages the use of its technology for distributing films without a license to do so," Cohen said in a statement. "As such, we are pleased to work with the film industry to remove unauthorized content from's search engine."

It is expected that the move will do little to actually reduce piracy, as the search engine on is just one of many that finds "torrents". Many other websites continue to refer visitors to movies, though the MPAA began suing some of them.


  • November 24, 2005: Tanner, Ben, MPAA, Bit Torrent reach agreement, DMasia:
    "The Motion Picture Association of America (MPAA) announced yesterday that it has reached an agreement with Bram Cohen, the designer of peer-to-peer (P2P) software Bit Torrent, to remove links to video content owned by the seven member studios of the MPAA from"

  • November 23, 2005: Jardin, Xeni, A Torrent or a Trickle?, Wired News:
     "It's all but certain the deal between the Motion Picture Association of America and BitTorrent creator Bram Cohen won't dent the file-swapping epidemic, let alone stop it."

  • November 23, 2005: Smith, Tony, BitTorrent to block links to pirate flicks, The Register:
    "BitTorrent creator Bram Cohen has agreed to strip links to pirate movies out of his search engine."

  • November 23, 2005: Utter, David, BitTorrent And MPAA Find Common Ground, Webpronews:
    "The creator of the high-speed file sharing application has linked up with Hollywood studios in an effort to clamp down on movie piracy and promote a way for film distributors to get their wares to users online."


5. AdWords-Decision in France

Does the selling of trade mark protected keywords by internet search engines, such as Google, infringe trade mark owner's rights? There have been many decisions worlwide (see this overview). One decision in France went quite unnoticed this year. I have found no report on it in English or German. Thanks to a reader from France, here is the link to the judgement in the Amen vs. Googe France and Espace 2001 case:


6. "Terms and Conditions of Sale" / "Privacy Policy" provided by hyperlink create binding contract

Hubbert v. Dell

An Illinois appeals court held that plaintiffs who purchased computers over the defendant's website were bound to an arbitration clause contained in the "Terms and Conditions of Sale,” even though they were not required to click on an “I agree” button specific to those terms of sale. To make their purchases, each of the plaintiffs completed online forms on five of the defendant's Web pages.  On each of the five Web pages, the defendant's "Terms and Conditions of Sale" were accessible by clicking on a blue hyperlink.  According to the court "the blue hyperlinks on the defendant's Web pages, constituting the five-step process for ordering the computers, should be treated the same as a multipage written paper contract.  The blue hyperlink simply takes a person to another page of the contract, similar to turning the page of a written paper contract.  Although there is no conspicuousness requirement, the hyperlink's contrasting blue type makes it conspicuous.  Common sense dictates that because the plaintiffs were purchasing computers online, they were not novices when using computers.  A person using a computer quickly learns that more information is available by clicking on a blue hyperlink."

  • Hubbert v. Dell, Decision of August 12, 2005, Appelate Court of Illinois, Fifth District

    Court enforces Online Agreements, Including Terms Accessibale Via Hyperlink


JetBlue Airways Corp. Privacy Litigation

Plaintiffs brought this action against JetBlueAirways Corporation for alleged violations of the Electronic Communications Privacy Act of 1986 and violations of state and common law. In their view defendants violated their privacy rights by unlawfully transferring their personal information to Torch for use in a federally-funded study on military base security. The defendant contended that the policy could only be accessed and viewed by clicking on a seperate stand-alone link on the bottom of a JetBlue Web page and was not a term of the contract of carriage. The court rejected this argument, but did not discuss it in detail, because it found that plaintiffs werde unable to plead or prove any actual contract damages. 

  • JetBlue Airways Corp. Privacy Litigation, July 29, 2005, United States District Court, Eastern District of New York, Full text at:

    Court enforces Online Agreements, Including Privacy Policy Accessibale Via Hyperlink


7. Hyperlinks & Law in Colombia

A visitor from Colombia sent me a comment from the National Copyright Office which deals with hyperlinks. Due to my lack of the Spanish language and the inefficiency of automated translation programs, I did not understand very much of it. As far as I can tell, the Colombian Law gives an author the exclusive right to make his work available online. In the opinion of the Copyright Office, hyperlinks can violate that right. This is contrary to what most courts have decided on this topic worldwide. If you are interested in the comment, don't hesitate to contact me and I will e-mail it to you.  The essential part of it could be the following:

"Como se puede observar, en uno u otro caso, el hipervínculo permite interconectar diversos sitios en la web, con lo cual, es fundamental entender que un link no es, simplemente, una nota de pie de página que pretende facilitarle al lector información adicional del tema que se encuentra en otro sitio. (...) tiene un elemento de contenido. Su elemento operativo radica en el código fuente que instruye al browser para que muestre un contenido que se encuentra en otra página de internet. Su elemento de contenido se constituye en el material al cual se dirige

El anterior análisis nos permite identificar, que si con estos hipervínculos se enlazan contenidos protegidos por el derecho de autor, será necesario entonces, contar con la autorización del autor o del titular del derecho.

En este sentido, el artículo 8 del Tratado de la OMPI sobre Derecho de Autor, establece a favor de los autores de obras literarias y artísticas el derecho exclusivo de autorizar la puesta a disposición del público de sus obras, a través de medios alámbricos o inalámbricos, que permita a los miembros del público acceder a estas obras desde el lugar y en el momento que cada uno de ellos elija.

Retomando precisiones anteriormente hechas de carácter técnico, en el momento de tener almacenados contenidos (hipertextos) y permitir, por medio de hipervínculos, el acceso a contenidos protegidos por el derecho de autor, se debe contar con la autorización previa y expresa de los titulares de los derechos patrimoniales de tales obras, por darse otro acto de comunicación pública en el entorno digital, como es la puesta a disposición del público que atiende al principio general del derecho exclusivo de orden patrimonial que tiene el titular de realizar, autorizar o prohibir cualquier clase de uso respecto de su creación."


8. Merry Christmas!

This is the last update of 2005 and I wanted to use this opportunity to wish all readers a Merry Christmas and a happy new year. Special thanks to all the people, who have sent me e-mails this year informing me about cases I have missed, discussing various topics or just gratulating me on the comprehensive website on hyperlinks and search engines. Without this input, the work on the website would only be half the fun.





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Latest News - Update 71

Legal trouble for YouTube in Germany

Germany: Employer may google job applicant

EU: Consultation on the E-Commerce-Directive

WIPO Paper on tradmarks and the internet

The ECJ and the AdWords Cases



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