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Update 50: June 25, 2007

1. Google v. Perfect 10: Appeals Court decision

Last year, a U.S. District Court in California preliminarily enjoined Google from creating and publicly displaying thumbnail versions of Perfect 10’s images, Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (C.D. Cal. 2006), but did not enjoin Google from linking to third-party websites that display infringing full-size versions of Perfect 10’s images (see Update 38). Perfect 10 and Google both appealed the district court’s order. The U.S. Court of Appeals for the Ninth Circuit overturned that decision and sent the case back down to the District Court for further proceedings.

Key Findings:

  • The owner of a computer that does not store and serve the electronic information to a user is not displaying that information, even if such owner in-line links to or frames the electronic information. So inline-linking to full-size images constitutes no direct infringement.

  • Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, but failed to show a likelihood that it will prevail against Google’s fair use defense. The court concluded that the transformative nature of Google’s use is more significant than any incidental superseding use or the minor commercial aspects of Google’s search engine and website: "The district court reasoned that persons who can obtain Perfect 10 images free of charge from Google are less likely to pay for a download, and the availability of Google’s thumbnail images would harm Perfect 10’s market for cell phone downloads. Id. As we discussed above, the district court did not make a finding that Google users have downloaded thumbnail images for cell phone use. This potential harm to Perfect 10’s market remains hypothetical." So the Ninth Circuit disagreed that the display of a thumbnail constitutes copyright infringement.

  • A search engine operator can be held contributorily liable if it has actual knowledge that specific infringing material is available using its system,  and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works.

Also see:

Perfect 10, Inc. v., Inc., CV-05-04753-AHM (9th Cir. May 16, 2007)


2. YouTube sued again!

The Football Association Premier League Ltd. and publisher Bourne Co. sued YouTube in U.S. District Court for the Southern District of New York, saying the online video pioneer was engaging in widespread copyright infringement to bring traffic to the site. The lawsuit asks for unspecified damages and YouTube's profits from the material in question. It also sought class action status.

This lawsuit comes less than two months after Viacom sued YouTube and Google for copyright infringement of their television programming, and six months after Google purchased the YouTube video sharing web site.

The Football Association Premier League Ltd v. YouTube, Inc., 1:07-cv-03582-UA (SDNY complaint filed May 4, 2007)

A mandolin player who recorded with The Grateful Dead also filed a copyright infringement lawsuit May 10 in federal court in San Francisco. The lawsuit says Google and YouTube "deliberately refuse to take meaningful steps to deter the rampant infringing activity readily apparent on YouTube."

Grisman v. YouTube, Inc., C-07-2518 (N.D. Cal. May 10, 2007). For more court documents see!


3. Austria: OGH on Adwords

Austria's highest civil court, the OGH, issued a decision on adwords. According to the ruling the use of a trademarked term as keyword is illegal. No big surprise so far. But the court only said so with regard to an add that appeared above the search results. The court left open the question if there is also a trademark infringement, if the ad is displayed beside the search result. The OGH discussed that the add was clearly labeled as such, but thought that this is not enough to stop the confusion of users whether the company running the ad is connected to the trademark owner.


4. European Union Questions Google's Data Retention Policy

EU's Article 29 Working Party, which is charged with providing expert opinion on issues of data protection, wrote to Google and said that despite recent changes in the search engine's data-retention policy, Google still does not meet EU standards for data retention.

In response to the letter Google decided to make the data it stores about its users anonymous in the server logs after 18 months (previously Google had said it would make the data anonymous after 18 to 24 months). The Article 29 Working Party said that it still needs to analyze Google's response to see whether it's an acceptable solution, and has asked Google several new questions about technologies that they use to collect search information.

The working group also attempts to deal with search engines in general and scrutinize their activities from a data-protection point of view.

Also trouble for Google in the USA: The Federal Trade Commission (FTC) has opened an antitrust investigation into Google Inc.'s proposed 3.1 billion dollar purchase of ad-management technology company DoubleClick Inc. The Electronic Privacy Information Center and other privacy groups had previously asked the FTC to investigate the privacy implications of the deal. The groups fear that the combination of Google's search history and DoubleClick's tracking of web sites visited would "give one company access to more information about the Internet activities of consumers than any other company in the world."

  • May 28, 2007: Lohr, Steve, Google deal said to bring U.S. scrutiny, CNet:
    "The Federal Trade Commission has opened a preliminary antitrust investigation into Google's planned $3.1 billion purchase of the online advertising company DoubleClick, an industry executive briefed on the agency's plans said Monday. "


5. AdWords lawsuits in the USA - An update

a. Google, Inc. v. American Blinds & Wallpaper Factory, Inc.

A federal judge set November 9, 2007 for jury selection in the trademark infringement lawsuit brought on behalf of American Blind & Wallpaper Factory, Inc.

b. Site Pro-1, Inc. v. Better Metal, LLC

According to the latest ruling from a Second Circuit court keyword triggering and metatag usage is not a trademark use in commerce.

Site Pro-1, Inc. v. Better Metal, LLC, 06-CV-6508 (ILG) (RER) (E.D.N.Y. May 9, 2007)


New in legal resources

  • Gasser, Urs, "Regulating Search Engines: Taking Stock and Looking Ahead" . Yale Journal of Law & Technology, Vol. 9, p. 124, 2006 Available at SSRN:

  • Chopra, Samir / White, Laurence, Privacy and Artificial Agents, or, Is Google Reading My Email?

  • Illmer, Martin, Keyword Advertising - Quo Vadis?, WRP 2007, 399-407

  • Meyer, Sebastian, Google & Co. - Aktuelle Rechtsentwicklungen bei Suchmaschinen, K&R 2007, 177-183

  • Dörre, Marko / Jüngst, Jochen, Aktuelle Entwicklung der AdWord-Rechtsprechung, K&R 2007, 239-246

  • Ott, Stephan,  Der Google Cache - Eine milliardenfache Urheberrechtsverletzung?, MIR Dok. 195-2007, Rz. 1-20

  • Ott, Stephan, Erfüllung von Löschungspflichten bei Rechtsverletzungen im Internet, WRP 2007, 605-609

  • Kazemi, Robert, Online-Nachrichten in Suchmaschinen, CR 2007, 94-101

  • Schirmbacher, Martin, Metatags und Keyword-Advertising, ITRB 2007, 117-118

  • Gupta, Apar, Liability of Intermediaries in India: From Troubled Waters to Safe Harbours, C.T.L.R. 2007, 60-65

  • Blakeney, Simone, Adverse to AdWords? An Overview of the Recent Cases Relating to Google Adwords, C.L.R.T. 2007, 83-87

  • Utah Prohibits Search Keyword Advertising Triggered by "Electronic Registration Mark", Electronic Commerce & Law Report 2007, 324-325

  • Utah Delays Implementation of Law Establishing Electronic Registration Mark, Electronic Commerce & Law Report 2007, 426-427

  • Search Ad Provider Owed Implied Duty Good Faith and Fair Dealing Under Contract, Electronic Commerce & Law Report 2007, 351

  • Use of Trademark to Key Internet Ads May Be Use in Commerce, Electronic Commerce & Law Report 2007, 377




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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