1. Search Engines Can Choose Not To Run Ads in the USA
In Langdon v. Google, Langdon, who operates web
sites claiming to expose corruption by U.S. and Chinese government officials,
sued Google, MSN, and Yahoo because they refused to publish his ads. Google
allegedly rejected them because they attacked people, MSN ignored his ad
request, and Yahoo said it would only take ads from sites it hosts (for
information on the lawsuit see Update 41).
On February 20, 2007, U.S. District Court Judge Joseph Farnan dismissed the
suit. "Search engines have a First Amendment right to reject ads as part of
their protected right to speak or not," Farnan wrote. So the court ruling
affirms Google's right to enforce its long-standing ad policy and gives Google
free reign to refuse an ad for any reason. However,
one claim remains: whether Google breached a contract it had with Langdon in
allowing him to sign up for AdWords.
2. Google faces lawsuit in South Korea over AdSense account termination
for alleged click fraud
The Korean Fair Trade Commission (KFTC) has asked Google to rewrite sections
of its AdSense contracts which empower Google to unilaterally cancel any deal.
These sections are considered unfair under Korean law.
Humor University placed Google AdSense ads on its website, but from October to
November 2005 did not get paid. When it complained to Google it was told its
contract had been terminated because of suspicious activities ("click fraud").
The university then made a complaint to the KFTC.
Google Faces Lawsuit Over Online Ads, Korea Times:
"Google, the world's primary Internet search engine, is likely to face a
damages suit in South Korea in connection with its context-based online
advertisements, dubbed AdSense."
3. Belgian Court: Google News violates copyright
A Belgian court upheld its
decision that Google violated the copyright of several Belgian newspapers by
posting extracts of their stories on the Google News Web site without their
permission. The Brussels Court of First Instance ruled that Google could not
call on exemptions, such as claiming "fair use": "Google is reproducing and
publishing works protected by copyright," it said. "Google cannot call on any
exceptions set out by law relating to copyright or similar rights."
The Brussels court has fined Google 25,000 € for
each day it displayed links to the Belgian newspapers, represented by plaintiff
Copiepresse, a group of 18 French- and German-language publications. The sum is
significantly below the original penalty of 1 million euros a day that the court
set last September.
Google intends to appeal the ruling.
February 14, 2007:
Belgian court confirms ruling against Google News, Heise:
"Google is not allowed to publish in its news section content found in
Belgian publications without the permission of the publishers in question;
without explicit permission items of this kind must be removed."
February 13, 2007: Crampton, Thomas,
Google Said to Violate Copyright Laws, New York Times:
"A Brussels court ruled Tuesday that Google had violated copyright laws by
publishing links to articles from Belgian newspapers without permission.
Legal experts said the case could have broad implications in Europe for the
news indexes provided by search engines."
February 13, 2007:
appeal Copiepresse decision, Outlaw.com:
"Google will appeal today's judgment from a Belgian court that it broke the
law when it used newspaper material in Google News. The company will have to
stop publishing links to certain newspaper sites having been found liable
for copyright infringement."
February 13, 2007: Robertson, Struan,
Why the Belgian
court ruled against Google, Outlaw.com:
"EDITORIAL: Every search engine should obtain permission from a website
before copying its pages or even snippets of text, according to a ruling by
a Belgian court today."
A wiki about a controversial prescription drug,
Zyprexa, has been
ordered by a US court to remove a link to documents which originated with
Eli Lilly, the drug's manufacturer. Zyprexa is Eli Lilly's best selling drug,
used to treat schizophrenia and bipolar disorder. Eli Lilly recently agreed to
pay up to $500 million to settle claims relating to Zyprexa. According to
the New York Times the documents showed that the company deliberately downplayed
the side effects of the drug.
The Electronic Frontier Foundation (EFF) intervened:
"Preventing a citizen-journalist from posting links to important health
information on a public wiki violates the First Amendment" (see the
release and the
Although the judge rejected the First Amendment
arguments made by a variety of individuals eager to publish the documents, the
court reversed his decision in relation to the wiki, which had published a link to
Viacom has filed a $1 billion
copyright infringement suit against Google. Viacom says Google's YouTube sevice
is hosting 160,000 infringing works, which have been viewed 1.5 billion times.
It alleges that YouTube "is a significant, for-profit organization that has
built a lucrative business out of exploiting the devotion of fans to others'
creative works in order to enrich itself and its corporate parent Google. Their
business model, which is based on building traffic and selling advertising off
of unlicensed content, is clearly illegal and is in obvious conflict with
Google managing counsel Michael
Kwun wrote a peppered letter with the title "An
End Run on Copyright Law" to the Washington Post in regards to the Viacom/
YouTube court case: "...Viacom is attempting to rewrite established copyright
law through a baseless lawsuit. In February, after negotiations broke down,
Viacom requested that YouTube take down more than 100,000 videos. We did so
immediately, working through a weekend. Viacom later withdrew some of those
requests, apparently realizing that those videos were not infringing, after all.
Though Viacom seems unable to determine what constitutes infringing content, its
lawyers believe that we should have the responsibility and ability to do it for
them. Fortunately, the law is clear, and on our side."
March 14, 2007: Declan,
YouTube's fate rests on decade-old copyright law, ZDNet:
"Whether YouTube suffers the same fate as Napster may depend on the wording
of a nearly antique law written long before video-sharing Web sites were
March 13, 2007:
Analysts: YouTube lawsuit may boost rivals, CNN:
"Viacom's billion-dollar legal gambit against Google could lead to more
media industry lawsuits and give a boost to rival online video services in
the emerging marketplace."
7. China: Yahoo sued for
linking to illegal song downloads
Yahoo China, the No. 2 Chinese search
engine after industry leader Baidu.com, links to web sites with unlicensed MP3
downloads of hundreds of songs. Warner Music Group, Sony BMG and nine
other music firms have sued Yahoo China for alleged copyright violations.
Beijing's intermediate court accepted the suit, which was filed in January 2007,
seeking 5.5 million yuan in compensation for linking its website to unlicensed
The lawsuit comes four months after Baidu.com, operator of China's largest
search engine, won a case brought by music firms claiming Baidu allowed links to
illegal song downloads on its website. According to the court, Baidu did not
violate copyrights because it helped users find music on non-affiliated websites
through links and did not offer direct downloads of music.
March 6, 2007:
Yahoo China sued for music downloads, Shanghai Daily
"Eleven music companies, including Universal Music Group and Warner Music
Group Corp, jointly filed a suit against Beijing-based Alibaba, operator of
the Yahoo China Website, which provides online music downloading services."
8. Google wins Kinderstart
US district court judge Fogel
has dismissed a lawsuit filed against Google by
KinderStart, a search engine aimed at kids and parents, without leave to
amend. The suit alleged that when Google delisted KinderStart in March 2005 it
violated anti-trust, unfair competition, free speech, and libel laws.
Kinderstart had also accused Google of manipulating search results for political
and religious reasons and skewing results in favor of companies that compensate
The case was first
filed in March 2006 and then KinderStart amended the complaint in
The Court concluded in its
July 13th Order that KinderStart had failed to allege facts sufficient to
support each of the four elements of an attempted monopolisation claim ... The Court also noted that KinderStart had not sufficiently described
the markets relevant to its claim. The SAC (second amended complaint) suffers
from essentially the same defects."
"The Court dismissed the defamation and libel claim in the FAC (first amended
complaint) on the basis that KinderStart had failed to explain how Google caused
injury to it by a provably false statement about the output of Google’s
algorithm regarding KinderStart.com, as distinguished from an unfavorable
opinion about KinderStart.com’s importance ... "KinderStart's allegations are vague and ambiguous, and KinderStart makes only general claims
as to the type of injury it allegedly suffered … KinderStart still has failed to
identify a provably false statement."
The judge also imposed
yet-to-be-determined sanctions on KinderStart's lawyer Gregory Yu for making
unsupported allegations against Google.
KinderStart.com LLC v. Google,
Inc., C 06-2057 JF (N.D. Cal. March 16, 2007)
March 21, 2007: Williams,
Judge boots out Google delisting suit, The Register:
"A US federal judge has thrown out a defamation suit against Google, brought
after the advertising firm's PageRank search engine relegated parenting
links site KinderStart.com."
9. Payday Advance Plus v.
Findwhat - Click Fraud Lawsuit in the USA
At the direction of Findwhat,
Advertising allegedly hired people to conduct Internet searches through
Findwhat’s search engine using certain keywords that would trigger search
results and advertising listings. Advertising instructed these people to click
on certain advertising links from the search results, including Plaintiff’s
links, thereby causing Plaintiff Payday to incur PPC charges for each such
click. Also at the direction of Findwhat, Advertising used computer programs or
“bots” to click continuously and systematically on Payday’s advertising links to
increase the defendants’ revenues. These “bots” were able to “spoof” different
reference points on the Internet to make it appear that the clicks came from
different sources. These methods, which Payday calls “click fraud”, led Payday
to be charged for clicks that were not the result of genuine interest from
consumers or of genuine market activity.
Playday claimed six causes
of action, e.g. breach of contract, unjust enrichment, negligence and civil
conspiracy. Only the breach of contract claim survived the motion to dismiss.
"...Payday argues that an interpretation of the contract that would allow the
defendants deliberately to generate clicks on Payday’s site from users or “bots”
who plainly have no intention of making purchases should be disallowed because
it would violate the implied covenant of good faith and fair dealing."
10. Search Ad Market no
market for antitrust purposes - Person v. Google (see
complaint Person claimed that Google
has removed a large number of search
terms from the bidding process to force small businesses to compete for
higher-priced keywords. Small advertisers are
being forced out of the AdWords market, which makes advertising more profitable
for Google's largest advertisers (the well-known established advertisers with
the higher clickthrough rates like eBay).
He charged Google with monopolization or
District Court Judge Jeremy Fogel dismissed the antitrust lawsuit against
Google. In his view there is not a monopoly
despite Google's formidable presence in the online ad market: "Plaintiff
defines the relevant market in the FAC as “‘keyword-targeted Internet
advertising’ in which advertisers pay to have their advertisements displayed (alone
or among an ordered group of ads identified as such) near the search results
obtained from Internet search engine (such as the search engines of Google and
Yahoo) using the keyword(s) selected by the advertiser... The Court finds no
basis for distinguishing the Search Ad Market from the larger market for
Internet advertising. Search-based advertising is reasonably interchangeable
with other forms of Internet advertising. A website may choose to advertise via
search-based advertising or by posting advertisements independently of any
search. The Search Ad Market thus is too narrow to form a relevant market for
JupiterResearch's estimate Google's share of the U.S.
online advertising market in 2006 was 17% -- one percentage point ahead of
11. Google wins court battle
in Belgium over Google Suggest (for more information see
ServersCheck, the Leuven
supplier of monitoring software and hardware for ICT-infrastructure, filed a
lawsuit in May 2006, demanding Google to modify Google Suggest to not offer up
piracy-related terms. When e.g. a user of the Googl toolbar entered the keyword
'serverscheck', Google suggested illegal versions of the ServersCheck products,
even before displaying the search results themselves.
The Commercial Court in Leuven
decided that “Google can’t be found liable for finding Web pages that may be
involved in illegal activity based on search terms. During the trial, Google had
repeatedly claimed that it is not possible to adapt its Google Suggest.
Serverscheck announced to appeal the decision.
March 24, 2007, Kirk,
Court dismisses lawsuit against Google, PC Advisor:
"A Belgian court has dismissed a lawsuit filed by a company claiming a
feature of Google’s search engine offers password-cracking tools and serial
numbers to unlock its software."
A California click fraud action
against Google was dismissed Nov. 28, 2006 by the U.S. District Court for the
Northern District of California in view of the recent settlement of the national
class action in Arkansas (Advanced Internet Tech. Inc. v. Google Inc., N.D. Cal.
No. C-05-02579-RMW, 11/28/06), which provides advertisers up to $ 90
million in ad credits in exchange for dismissal of all claims of click fraud
against the company.
Bertrand Pautrot, who runs the
gave me a list of French decisions about sponsored links which I haven't
mentioned in my decisions section so far (Some of them were already mentioned in
the AdWords section)
TC Paris 15ème chambre 24 novembre 2006, OneTel
c/ Google France et Olfo :
Allgrove, Ben and Ganley, Paul, "Search
Engines, Data Aggregators and Uk Copyright Law: A Proposal" (February 7, 2007).
Available at SSRN: http://ssrn.com/abstract=961797
Hüsch, Moritz, Keyword Advertising und
Keyword Buying, 2006
Google's New Patent Search Sparks Debate in Patent Community, Electronic
Commerce & Law Report 2007, 8-10
Use of Mark in Google Adwords Helps Support TRO on Lanham Act Claim,
Electronic Commerce & Law Report 2007, 18-19
Coding Meta Tags, Buying Search Keywords With Competitor's Mark Is Use
in Commerce, Electronic Commerce & Law Report 2007, 26
Laurent, Philippe, Google News banned by Brussels High Court -
Copiepresse SCRL v. Google Inc. - Prohibitory injunction of the President of
the High Court of Brussels, 5 September 2006, Computer Law & Security Report
Kierkegaard, Mercado, Clearing the legal
barriers - Danish court upholds 'deep linking in Home v. Ofir, Computer Law
and Security Report v22 no4 p326-332, 2006
Tonsing, On Cloaking and Searching and
Charles Darwin, Federal Laywer v53 no 7 p10-11 Ag 2006