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
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
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.
Perfect 10, Inc. v. Amazon.com, Inc., CV-05-04753-AHM (9th Cir. May 16,
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)
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
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
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
The working group
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. "
AdWords lawsuits in the USA - An update
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
Site Pro-1, Inc. v. Better Metal, LLC, 06-CV-6508 (ILG) (RER) (E.D.N.Y. May
New in legal resources
Urs, "Regulating Search Engines: Taking Stock and Looking Ahead" . Yale
Journal of Law & Technology, Vol. 9, p. 124, 2006 Available at SSRN:
Samir / White, Laurence,
Privacy and Artificial Agents, or, Is Google Reading My Email?
Martin, Keyword Advertising - Quo Vadis?, WRP 2007, 399-407
Sebastian, Google & Co. - Aktuelle Rechtsentwicklungen bei Suchmaschinen, K&R 2007, 177-183
Dörre, Marko /
Jüngst, Jochen, Aktuelle Entwicklung der AdWord-Rechtsprechung, K&R 2007,
Google Cache - Eine milliardenfache Urheberrechtsverletzung?,
MIR Dok. 195-2007, Rz. 1-20
Löschungspflichten bei Rechtsverletzungen im Internet, WRP 2007, 605-609
Online-Nachrichten in Suchmaschinen, CR 2007, 94-101
Martin, Metatags und Keyword-Advertising, ITRB 2007, 117-118
Liability of Intermediaries in India: From Troubled Waters to Safe Harbours,
C.T.L.R. 2007, 60-65
Adverse to AdWords? An Overview of the Recent Cases Relating to Google
Adwords, C.L.R.T. 2007, 83-87
Search Keyword Advertising Triggered by "Electronic Registration Mark",
Electronic Commerce & Law Report 2007, 324-325
Implementation of Law Establishing Electronic Registration Mark, Electronic
Commerce & Law Report 2007, 426-427
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