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Update 38: April 4, 2006


1. DOJ's Request for Search Data

In August 2005, Google was served with a subpoena from the U. S. Department of Justice (DOJ) demanding disclosure of two full months’ worth of search queries that Google received from its users, as well as all the URLs in Google’s index. Google objected to the subpoena, which started a set of legal procedures that put the issue before the Federal courts (see: 1984 is now! Google fights US Government). Google's response to the Department of Justice's motion to the court to force the search engine to comply with the subpoena, can be found here.

The ACLU urged the U.S. District Court for the Northern District of California to rule in favor of Google’s effort to block the government’s subpoena for information about its customers’ online behavior.  “The government is not entitled to go on a fishing expedition through millions of Google searches any time it wants, just because it claims that it needs that information,” said ACLU staff attorney Aden Fine. “Anyone asking a court to approve such an intrusive, burdensome request must explain why the information is needed and for what purpose. The government has refused to make its purpose known to the public or to the Court, and Google has rightly denied the government’s demand for this information.” See Plaintiffs' Response to Motion to Compel Google

In a declaration the Justice Department rejected Google's privacy concerns, noting that the government specifically requested that Google remove any identifying information from the search requests. The paper also stated that the nature and depth of the requested information would do little to threaten Google's closely guarded trade secrets. Nonetheless, government attorneys greatly reduced the scope of their request to only 50,000 Web addresses and 5,000 search terms.

After 90 minutes spent hearing the DOJ and Google arguments on March 12, Judge Ware said, “It is my intent to grant some relief to the government.” And so he did a few days later: According to the ruling Google has to hand over 50,000 Web addresses from its search index, but has not to reveal terms its users had been searching for. In a 21-page ruling, Judge James Ware said the privacy considerations of Google users led him to deny part of the Justice Department's request.

"What his ruling means is that neither the Government nor anyone else has carte blanche when demanding data from internet companies," Nicole Wong, Google's associate general counsel, said in a statement on the company's website. The full comment is at

A study conducted by the University of Connecticut showed that "only 13% of the public feel “extremely” or “very” confident that the search behavior collected by Internet companies will remain private."


2. Creation of Thumbnails can be a copyright infringement in the USA

According to a preliminary ruling in a US Federal Court thumbnail images displayed in Google Image Search breached Perfect 10 copyright. The court did not follow Google's argument that its creation and display of thumbnails is fair use under 17 U.S.C. § 107. Decisive arguments:

  • ... If third-party websites that contain infringing copies of P10 photographs are also AdSense partners, Google will serve advertisements on those sites and split the revenue generated from users who click on the Google-served advertisements...Google has a strong incentive to link to as many third-party websites as possible—including those that host AdSense advertisements. (does not seem very convincing to me...)

  • ...In early 2005 P10 entered into a licensing agreement with Fonestarz Media Limited for the sale and distribution of P10 reduced-size images for download to and use on cell phones. Google’s use of thumbnails does supersede this use of P10’s images, because mobile users can download and save the thumbnails displayed by Google Image Search onto their phones (very convincing, but the argument is limited to this case, so Google's picture search as such is not in jepardy)

US District Court Judge Howard Matz also held that Google was not responsible if surfers clicked on thumbnails that directed them to full size porno images hosted on third party websites, taken without permission from the official Perfect 10 site. This is big news: The court held that Google is not secondarily liable under the doctrines of contributory or vicarious infringement for linking to infringing content! Bringing visitors to the linked-to-websites is not enough to establish material contribution. So in theory, Google could stop removing websites with infringinging content from their search results. Google no longer depends on the safe harbour provision (17 U.S.C. § 512 (d)).

Howard Matz ordered Google and Perfect 10 to develop a preliminary injunction that reflects both factors. The order could effectively bar Google from featuring thumbnail pictures. So no surprise: Google said that it plans to appeal the injunction!

PDF-document of the decision 


3. Google settles suit over click fraud

Last year, a consortium of advertisers (led by Lane's Collectibles) has filed a class action suit in Arkansas against Yahoo, Google and 9 other search engines, accusing the search companies of  knowingly charging for fraudulent clicks.

In March, Google agreed to pay up to $90 million in legal fees and compensation in the form of credits for further advertising to companies who believe they have been affected by click fraud, to settle its part of the lawsuit.  If approved by the judge in the case, the agreement will cover all advertisers who claim to have been charged but not compensated for invalid clicks as far back as 2002 when the pay per click programme was introduced.

A spokeswoman for Yahoo said her company was prepared to continue to defend itself against the legal action.

Also see the official Google Blog!


4. Google dislikes Ashley Cole

The premiership footballer Ashley Cole is involved in legal action against the News of the World and The Sun over stories alleging bisexuality among Premiership players. And Google is doing its best to attract more people to the story: Typing "ashley cole" into the search engine generates "See results for: ashley cole gay"! Cole’s solicitors want to know when and what prompted the process. Cole said: "I am keen to find out whether the decision to automatically include the term ‘gay’ to the keyword ‘Ashley Cole’ was an editorial decision or one made by a computer based on the volume of searches for ‘Ashley Cole’ linked to the word ‘gay’."


5. Google Video: Posting of a copyright protected video

Filed under the Digital Millennium Copyright Act, a subpoena issued Feb. 21 demands that Google and video-sharing site YouTube reveal the name of the person who posted a portion of one of American Airline's training videos on their Web sites.


6. Google's web search systems no copyright infringement

Judge R. Barclay Surrick of the U.S. District Court for the Eastern District of Pennsylvania has dismissed a lawsuit alleging that Google Inc.'s Web search systems infringe on a publisher's copyright. The judge in that case affirmed Google's "fair use" right to cache and found that Google was not responsible for anonymous Web postings attacking the plaintiff in Usenet newsgroups that Google archives on its computers. Google enjoys projection under an exemption to the Communications Decency Act.

  • March 17, 2006: Google wins Usenet copyright case, The Register:
    "Google has won a legal action brought over a Usenet posting that the search giant archived and partially displayed in search results."

  • March 17, 2006: Usenet-Teilnehmer verliert vor Gericht gegen Google, Heise:
    "Richter R. Barclay Surrick vom Bezirksgericht des Eastern District of Pennsylvania hat eine Zivilklage des Kleinverlegers Gordon Roy Parker aus Philadelphia gegen den Suchmaschinenhersteller Google und "50.000 Unbekannte" abgewiesen."


7. Right to be listed in search engines? - v. Google

A civil complaint, filed in U.S. District Court in San Jose by, seeks to be certified as a class action representing the owners of all Websites blacklisted by Google's Internet-leading search engine since January 2001.  KinderStart, a Norwalk-based Web site devoted to information about children, says it was dropped from Google's index a year ago without warning. KinderStart said its traffic plunged by 70 percent after Google dropped it. The complaint accuses Google, as the dominant provider of Web searches, of violating KinderStart’s constitutional right to free speech by blocking search engine results showing Web site content and other communications. KinderStart contends that once a company has been penalized, it is difficult to contact Google to regain good standing and impossible to get a report on whether or why the search leader took such action.

For an assessment of the seven claims of actions see: Goldman, Eric, Google Sued Over v. Google, Technology and Marketing Law Blog


New in Decisions

  • OGH, Decision of December 19, 2005, Az. 4 Ob 194/05s
    AdWords, Trademark Law
  • OLG Wien, Decision of July 14, 2005, Az. 1 R 134/05s
    AdWords, Trademark Law


New in Legal Resources

  • Hoeren, Thomas, Anmerkung zu OLG München, Urteil vom 28.7.2005 - 29 U 2887/05 (Slysoft-Link), MMR 2005, 773

  • Spieker, Oliver, Verantwortlichkeit von Internetsuchdiensten für Persönlichkeitsrechtsverletzungen in ihren Suchergebnislisten, MMR 2005, 727-732

  • Barrett, Margreth, Internet Trademark Suits and the Demise of "Trademark Use," 39 U.C. Davis L. Rev. 371 (2006).

  • Scheja, Katharina, Anmerkung zu OLG München vom 28.7.2005 - Az 29 U 2887/05, CR 2005, 826-828

  • van Eijk, Nico, Suchmaschinen: Wer suchet, der findet? Die rechtliche Stellung der Suchmaschinen, Iris plus

  • Schulz, Wolfgang / Held, Thorsten / Laudien, Arne, Search Engines as Gatekeepers of Public Communication: Analysis of the German framework applicable to internet search engines including media law and anti trust law, German Law Journal

  • Krog, The Norwegian "Napster case" - Do hyperlinks constitute the "making available to the public" as a main or accessory act?, Computer Law & Security Report 2006, 73-77

  • Köster, Oliver / Jürgens, Uwe, Die Haftung von Suchmaschinen für Suchergebnislisten, K&R 2006, 108-112

  • Search Engine Archiving of Web pages Is not Copyright Infringement if Door is Open, Electronic Commerce & Law Report 2006, 123

  • Google Likely Infringes by Displaying Thumbnail Versions of Copyrightes Photos, Electronic Commerce & Law Report 2006, 241-243

  • MPAA Files Seven Copyright Suits Aimed For First Time at Newsgroups, Indexing Sites, Electronic Commerce & Law Report 2006, 244-245

  • Google Fights DOJ Subpoena Seeking Random Internet Searches, Electronic Commerce & Law Report 2006, 99





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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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