Links & Law - Information about legal aspects of search engines, linking and framing

Hyperlink & Search Engine Law News  Decisions & Court Documents Worldwide Legal Resources (Hyperlink & Search Engine Law Articles) Linking Law Cases Search Engine Law Publications by Dr. Stephan Ott Technical    Background

 Update 47: February 10, 2007

1. Framing a Copyright Violation in Germany

The Munich regional court (parties names are not released under German privacy law, decision of January 10, 2007, No. 21 O 20028/05) held that framing infringes a copyright holder's exclusive right to make his work publicly available according to § 19 a of the German Copyright Act. The defendant had used a framing link to incorporate a photo of a Vimba bream, a fish with the more common name zanthe, in his own website without the permission of the right holder.  

Frames devide an Internet browser window into separate regions. With a framing link, the title of the web site as well as its URL are not replaced by the linked to site's, so that a user may not recognize that he is viewing another web page.

To construe the making available right, the court did nether take a purely server-oriented perspective based on what happens at the technological-level as users browse the web (the web site on which the content is stored and by which it is served directly to a user, not the web site that frames the content, is the web site that makes the content available) nor a purely visual perspective (the mere act of incorporating content into a web page). According to the court a work is made publicly available if technical measures cause its integration into the appearance of a web site even if the file is located on a foreign server, as long as users can't detect the true origin of the content. Following this reasoning, the operator of a web site would not impose himself to suit for direct infringement, if he discloses the identify of the actual server of the content.

The decision is available, in German, at


2. Google wants broader Fair Use Exemptions in Australia

In a written submission to the Australian Senate Google argued that proposed fair use exemptions in a bill amending Australia's copyright law does not go far enough in protecting fair use. Google called for a specific exception that would exempt from infringement all caching, indexing and archiving where the copyright owner has not used a standardized protocol to prohibit caching or archiving: "Given the vast size of the Internet, it is impossible for any search engine to contact personally each owner of a web page to determine whether the owner desires its webpage to be searched, indexed, or cached. If such advance permission was required, the Internet would promptly grind to a halt." Google also proposes an exemption for the digitizing of library and archive material: " exception should be made for the reproduction and storage of digital copies of entire works when such reproduction is done for the purposes of permitted research, study, or private use."

Full text of the submission


3. Great Britain: Consultation Document on the Electronic Commerce Directive: The Liability of Hyperlinkers, Location Tool Services and Content Aggregators

In June 2005 the DTI published a consultation document seeking the views of UK business, consumers and other organisations on questions relating to whether the UK should extend the limitations of liability to providers of hyperlinks, location tool and content aggregation services.

"Summary of government response:
1.6 Although there have been good arguments made both for and against the granting of an extension of the limitations on liability to providers of hyperlinks, location tool services and content aggregation services, the DTI, mindful of its obligation for evidence based-regulations, has reached the conclusion that there is currently insufficient evidence to justify any extension to these limitations.
1.7 The second review of the Electronic Commerce Directive by the European Commission is due in 2007 and the DTI will encourage the Commission to take on board the important issues raised during this consultation."

The Document


4. Yahoo China v. Beijing Sanjiwuxian Internet Technology

Yahoo China has won an unfair competition lawsuit in China brought against Beijing Sanjiwuxian Internet Technology, the company that operates According to the lawsuit  Qihoo's antivirus software called 360safe would tell users of Yahoo China's toolbar to uninstall the application, claiming it was malware. However, the court found that this was not the case. Beijing's Second Intermediate Court ordered Qihoo to compensate Yahoo China for unspecified damages and legal costs and to make a public announcement saying that Yahoo China's software is not malicious in nature.

  • December 21, 2006: Yahoo China wins case against rival, InfoWorld:
    "Yahoo China has won a Chinese court case it brought against rival Beijing Sanjiwuxian Internet Technology Co. Ltd. for unfair competition."



5. Is deep linking legal? U.S. District Judge says "No"!

U.S. District Judge Sam Lindsay in the northern district of Texas granted a preliminary injunction against Robert Davis, who did no more than providing direct links to the live audiocasts of motorcycle racing events through his site According to the court, the unauthorized link to the SFX webcast would likely qualify as a copied display or performance of plaintiff's copyrightable material (the judge was already critisized for failing to understand the internet). "SFX will likely suffer immediate and irreparable harm when the new racing season begins in mid-December 2006 if Davis is not enjoined from posting links to the live racing Webcasts. The court agrees that if Davis is not enjoined from providing unauthorized Webcast links on his Web site, SFX will lose its ability to sell sponsorships or advertisement on the basis that it is the exclusive source of the Webcasts, and such loss will cause irreparable harm."

Live Nation Motor Sports, Inc. v. Davis, 2006 WL 361983 (N.D. Tex. Dec. 12, 2006).

The opinion / Other papers in the case (at Davis's site)


6. Google: Setback in European battle for Gmail

Google's e-mail service is known as "Gmail" in all European countries, except for Germany (the district court in Hamburg handed Giersch victories at both the preliminary and final stages of the litigation, see Update 33) and the United Kingdom, where it goes by "Google Mail" as a result of trademark disputes in those countries.

In a January 23, 2007 ruling, the Office for Harmonisation in the Internal Market (OHIM), the body which is responsible for European community trademarks, has ruled that Google cannot register "Gmail" across Europe, as the name is similar to Daniel Giersch's registered trademark, which translates as "G-mail ... and the Post really takes off." "The high degree of similarity between the marks leaves little room for small differences to be observed by the general public," the Office said. Google could appeal the decision, up to the highest regional court, the European Court of First Instance.

After the ruling, Giersch announced lawsuits to defend more recent registrations of the trademark in Switzerland, Norway and Monaco.


7. Stoller: Google will go out of business by the end of this lawsuit...

Google has sued Stoller for false advertising, unfair competition and RICO violations for claiming that Stoller owns the Google trademark. According to Wikipedia, Leo D. Stoller is an self-styled "intellectual property entrepreneur", who controversially claims rights to a large inventory of "famous" trademarks and engages in the assertive enforcement of those alleged trademark rights, threatening infringement action against people and companies who attempt to use similar marks. A federal court labeled Stoller and his companies as "vexatious litigants" in 2005. Courts have repeatedly found lawsuits brought by Stoller to be part of pattern of sham litigation and have repeatedly sanctioned him for his groundless claims of trademark rights. The complaint is a funny read. It lists out the long, long history of Mr. Stoller, and details many of the lawsuits he's lost and bogus trademarks he's claimed to own.

In 2005 Stoller tried to claim the trademark "Google", sending a letter to the USPTO on letterhead supposedly from an organization called "Google Brand Licensing and Products," claiming the use of "Google" in commerce since 1981. Stoller also claimed on his website that you could license "Google" from him. He then demanded money from Google to make this go away. He threatened to destroy the Google trademark by having it taken away as generic. He alleges that the Trademark Trial and Appeal Board cancel Google's mark because it has become a "generic" name for the goods or services for which it is registered (15 U.S.C Section 1064(3)). He also alleges that Google has also perpetrated a fraud on the public by contacting publishers of dictionaries in order to induce the publishers to change the "lexicon" of the 'google' meaning so as to avoid the generic label.

Stoller promises that Google's stock "won't be worth $5 a share" after he's done with them and that he wouldn't be surprised if "Google goes out of business" by the end of his lawsuit...

Google v. Central Mfg Inc., No. 07CV 385 (N.D. Ill. complaint filed Jan. 19, 2007)


8. Conference on the law of search engines in Haifa

An international and interdisciplinary academic conference on the law of search engines was held in Haifa last December. PDFs of a number of the presentations can be found at the conference website.


Also see:


9. AdWords Lawsuits: Latest Developments

  • Matim-Li Fashion Chain for Large Sizes Ltd. (and others) v. Crazy Line Ltd., Google Israel Ltd. (and others), Tel Aviv District Court: The Court rejected plaintiff's motion for a temporary injunction to prohibit its competitor, Crazy Line, from using its registered trademark as a keyword. The Court made it plain that the users of Google’s search engine were capable of making the distinction between information presented as an advertising link and the search results.
    Also see: Application 8774/06 Matim Li et al v. Crazy Line Ltd. et al (Tel Aviv District Court, July 31, 2006),

  • Rescuecom, which had its trademark suit against Google for selling ads to competitors that appear when users search for Rescuecom dismissed as not being a trademark violation, is appealing to the Second Circuit, Rescuecom v. Google, 06-4881-CV (2nd Circuit appellant brief filed January 12, 2007).


10. Danish company Krak charges for links

Krak, a  mapping company in Denmark enables users to input a company name, address, telephone number etc and the service brings you up a map with a little dot showing where on the map this address is. Their terms and conditions state that they will charge money for links to one of their map pages without permission. Following stories on Digg’s front page the company changed its terms and they no longer charge a blogger for linking to a map, as long as they are not for profit, and providing they ask permission first.

There is also a court case underway between Gauguin (an auctioneer house) and As O'Flaherty, the person who has covering this the most (in the English Language at puts it, "if Krak win this court case then it will be legal for any company to hide a linking policy away deep on their site and then hand out bills for any amount of money they want."


11. Steinbuch v. Cutler

According to the U.S. District Court for the District of Columbia, a blogger that boosted the notoriety of a lesser know blog by linking to the blog may be added as a defendant in an invasion of privacy lawsuit (Steinbuch v. Cutler, D.D.C., No. 05-0970, 10/30/06).

In May 2004, defendant Jessica Cutler was working as a staff assistant to United States Senator Mike DeWine. On May 5, 2004, she created a blog, entitled “Washingtonienne.” Over the next twelve days, the defendant wrote in the blog about her social and sexual activities with various men, including plaintiff Robert Steinbuch. On May 18, 2004, the website written by Ana Marie Cox and known as “Wonkette” (and available at posted a link to defendant’s blog, whereupon it was circulated to a wide audience.


12. Breach of Ad Terms: Hanson Industries v. Google Update

Google has been sued for overcharging in AdWords by CLRB Hanson Industries LLC and others, in Santa Clara Superior Court. The complaint, filed on August 3, 2005,  accuses Google of charging advertisers more than the daily limits that the system lets advertisers choose (see Update 32).

Google filed a motion for summary judgment Oct 2, 2006. Google says, the terms of the parties’ Agreement expressly state that on any single day, the AdWords system may deliver up to 20% more ads than an advertiser’s daily budget calls for and that an advertiser will never be charged more than [his/her/its] average daily budget over the course of a month. According to Google, its invoices show that Plaintiffs were not charged more than 120% of the daily budget on any given day or more than the number of days in a month multiplied by the daily budget.


13. - Links & Law partner site

Links & Law has a new partner web site in France, Betrand Pautrot's web site provides information on search engine law in French. He regularly publishes more complete articles about this item on his search laboratory's website ( He will provide me with sum ups of these articles in English from time to time. With this new network between our sites I will be able to present more news on french lawsuits about search engines and hyperlinks. In return, I will inform him about the latest developments in Germany (see e.g.  Le framing peut violer le droit de divulgation selon une cour allemande!)


14. New in Legal Resource

  • Klein, Davis, Modzeleski, Buyers beware (U.S. Courts continue to differ on the issue of use in the context of search engine keyword-triggered advertising), Trademark World 193, 39-42

  • Hartl, Fremde Kennzeichen im Quelltext von Webseiten, MMR 2007, 12-15

  • Meyer, Sebastian, Google AdWords: Wer haftet für vermeintliche Rechtsverletzungen?, K&R 2006, 557-562

  • Schöttle, Hendrik, Website- und E-Mail-Marketing - ein Überblick, JurPC Web-Dok. 9/2007

  • Pierson, Matthias, Online-Werbung nach der UWG-Reform - Teil 2, K&R 2006, 547-551

  • Terhaag, Anmerkung zu BGH - Impuls, K&R 2006, 574-575

  • Google Urges Australian Senate To Adopt Broader Fair USe Exemptions, Electronic Commerce & Law Report 2006, 1124-1125

  • In-Line Linking Is Form of "Display" Perfect 10 Tells Ninth Circuit Panel, Electronic Commerce & Law Report 2006, 1126-1127

  • Purchase, Use of Another's Mark for Search Engine Advertising Held "Use in Commerce", Electronic Commerce & Law Report 2006, 1061

  • University of Wisconsin Libraries Join Google Book Search Project, Electronic Commerce & Law Report 2006, 1044-1045

  • Google, MSN Seek Exit Strategy In Dispute With Belgian Publishers, Electronic Commerce & Law Report 2006, 1048-1049

  • Google Advertisers Bound by Forum Selection Clause Despite Adhesion Contract Context, Electronic Commerce & Law Report 2006, 1050-1051




The Links & Law website is updated regularily, so  check back for updated information and resources about search engine and linking issues.

You are currently in the archive with older news. A complete list of the updates can be found here!

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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