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Update 48: April 6, 2007

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 more 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.

Also see:


Text of the decision


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.

  • Kim Tae-gyu, 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 law

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: Google will appeal Copiepresse decision,
    "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,
    "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."

The ruling, in French (44-page / 1.2MB PDF)


4. Zyprexa - EFF

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 press release and the EFF's Motion).

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 the documents

See the District Court Final Judgment Order and Injunction



5. Viacom sues Google over YouTube

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 copyright laws."

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, McCullagh, 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 envisioned."

  • 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."


6. Settlement in keyword lawsuit

Buying for the Home, LLC and Humble Abode settled their case (LLC, No. 03-CV-2783 (JAP) (D. N.J. Stipulation and Order of Settlement filed Feb. 16, 2006)). For more information on the case see Update 45 and


7. China: Yahoo sued for linking to illegal song downloads

Yahoo China, the No. 2 Chinese search engine after industry leader, 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 music.
The lawsuit comes four months after, 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 7, 2007: Musikindustrie wirft Yahoo China Copyright-Verletzungen vor, Heise:
    "Universal Music, Warner Music und neun weitere Plattenfirmen haben gemeinsam Alibaba verklagt, Betreiber von Yahoo China."

  • 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 case

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 Google financially.

The case was first filed in March 2006 and then KinderStart amended the complaint in September.

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, as distinguished from an unfavorable opinion about’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. LLC v. Google, Inc., C 06-2057 JF (N.D. Cal. March 16, 2007)

Opinion dismissing the lawsuit / Opinion granting sanctions



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."

Payday Advance Plus, Inc. v., Inc., 2007 WL 760437 (S.D.N.Y. Mar. 12, 2007)

Also see:


10. Search Ad Market no market for antitrust purposes - Person v. Google (see Update 45)

In his 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 attempted monopolization.

U.S. 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 antitrust purposes."

According to JupiterResearch's estimate Google's share of the U.S. online advertising market in 2006 was 17% -- one percentage point ahead of Yahoo.

Person v. Google, C 06-7297 JF (RS) (N.D. Cal. Mar. 16, 2007)

Also see:


11. Google wins court battle in Belgium over Google Suggest (for more information see Update 40)

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, Jeremy, 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."

  • March 23, 2007: ServersCheck file an appeal against Google,
    "It is said that the Belgian court had dismissed the filed lawsuit of a company against Google Inc."

12. Click Fraud Case Dismissed

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.

Advanced Internet Technologies, Inc. v. Google, Decision of December 7, 2006


13. Decisions in France - Update

Bertrand Pautrot, who runs the website, 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 :


CA Versailles, 2 novembre 2006, Sarl Overture et Sté Overture Services Inc c/ SA Accor :


TGI Paris, référé, 11 octobre 2006, SA Citadines c/ Sté Google Inc et Sarl Google France :


TGI Paris, 12 juillet 2006, GIFAM et autres c/ Google France :


CA Paris, 28 juin 2006, SARL Google, Sté Google Inc c/ SA Louis Vuitton Malletier :


T Com Lille, référé, 1er juin 2006, Sté Espace Unicis c/ SA Meetic et SARL Google France :


TGI Paris, 8 décembre 2005, Kertel c/ Google France, Google Inc. et Cartephone :


New in Legal Resources

  • Allgrove, Ben and Ganley, Paul, "Search Engines, Data Aggregators and Uk Copyright Law: A Proposal" (February 7, 2007). Available at SSRN:

  • 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 2007, 82-85

  • 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

  • Terhaag, Michael, Anmerkung zu OLG Braunschweig - AdWords, MMR 2007, 111

  • Ott, Stephan, Anmerkung zu LG Braunschweig - AdWords, MMR 2007, 123-124

  • Renner, Cornelius, Metatags und Keyword Advertising mit fremden Kennzeichen im Marken- und Wettbewerbsrecht, WRP 2007, 49-54




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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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