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.
2. Google wants broader Fair Use Exemptions in
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: "...an 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
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
"Summary of government
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."
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 Qihoo.com. 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
5. Is deep linking legal? U.S. District Judge
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 supercrosslive.com. 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).
January 23, 2007:
Texas court bans deep linking, The Register:
"A court in Dallas, Texas has found a website operator liable for copyright
infringement because his site linked to an 'audio webcast' without
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
After the ruling, Giersch announced lawsuits to
defend more recent registrations of the trademark in Switzerland, Norway and
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...
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.
Application 8774/06 Matim Li et al v. Crazy Line Ltd. et al (Tel Aviv
District Court, July 31, 2006), copyright.co.il
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 Krak.dk. As O'Flaherty, the person who has
covering this the most (in the English Language at
http://blog.oflaherty.dk) 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
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
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 www.wonkette.com)
posted a link to defendant’s blog, whereupon it was circulated to a wide
12. Breach of Ad Terms: Hanson Industries v.
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
Google filed a
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.
Betrand Pautrot's web site provides
information on search engine law
He regularly publishes more complete articles about this item on his search
laboratory's website (www.cejem.com).
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