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Update 60: December 14, 2008

1. Argentina: Google and Yahoo locked in legal battle with celebrities

Martin Leguizamon, 48, a Buenos Aires attorney, has taken on the local versions of Yahoo und Google on behalf of many of Argentina's best-known actors, models, sports personalities and judges. Initially he represented a group of about 70 fashion models and asked the search engines to block all search results with their names with the intent of blocking pornographic web sites that used the models' pictures. He succeeded in getting restraining orders. Yahoo and Google were ordered to censor search results from their Argentine sites for information about the plaintiffs. Then other public figures - including Maradona and the high-profile judge María Servini de Cubría - have sought out the same lawyer to successfully block search results about them as well. In some cases, the restraining orders require Yahoo and Google to censor results for certain URLs or keywords. In other instances they call for broad restrictions such as censorship of defamatory or scandalous material.

Yahoo first tried to satisfy the orders by blocking content on a site-by-site basis. But as the scope of the orders grew, the company couldn't satisfy the courts. The fines pilled up, and Yahoo has resorted to blocking almost all sites involving the celebrities in question. The only exceptions are hyperlinks to major news media sites. If a user enters the name Maradona e.g., he will see a disclaimer in Spanish stating: "Due to a court order requested by private parties, we find ourselves obliged to temporarily suspend all or some of the results related to this search."

So far, Google Argentina isn't filtering as extensively as Yahoo! and hopes for successful appeals and the legislator to change the law.

Also see: Argentine search engines told to block famous names, Outlaw


2. Germany: Thumbnail decision revisited

I already mentioned in the last update that the German photographer Michael Bernhard and the artist Thomas Horn have won lawsuits against Google for displaying thumbnails images of their works in picture search results.

I now have the court decision (German):

According to the Court Google infringes the making available right of the copyright owner. The court examines several exceptions to the copyright exclusivity, e.g. the right of citation, but finds that no exception applies.

Earlier court decisions on thumbnails in Germany discussed the possibility of an implied consent by the copyright holder. But this case was different: The picture, which Google used to create the thumbnail, had not been put on the web by the copyright owner and he had also not allowed the reproduction by a third party. So there was no basis for an implied consent.


The court then stressed the importance of search engines for the internet (although it said that picture search is not as important as web search), but it also said that it was not up to the court to invent new copyright exceptions. It saw no possibility to say that Google's actions are legal.


3. Spain: Google Cache is legal (the

The plaintiff accused Google of copyright infringement by reproducing snippets from his web site in the results page and by making available cached copies of his web site.

As to the snippets, the court (Sentencia de la Audiencia Provincial de Barcelona (Section 15), of 17 September 17, 2008) concluded that they are too short and thus not infringing.

As to the cached copies the court examined the exceptions to the copyright holder's exclusivity. The court doubted that the exception of temporary reproduction (Art. 31 I of the Ley de Propiedad Intelectual / Art. 5 I of the EU Copyright Directive) applies, because the copies Google uses for its service exist for a longer time, even if the original web site has been removed or modified. But the court did not make a final decision on this subject. Instead it looked at the three step test (See e.g. Article 13 of TRIPs. It reads: "Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.") and the US fair use doctrine and found that these principles should also guide the interpretation of the scope of the protection of intellectual property rights in Spain in order to avoid absurd overextensions of the protection of copyright owners. The court than found that the Google Cache is a socially tolerated use and does not do any harm to the copyright holder. But Google has to comply with some basic requirements. Here the court refered to the caching safe harbor in Art. 13 of the E-Commerce Directive, (The caching safe harbor does not apply to the Google cache, but the court assumed that these requirements are also the limits that a cache provider must observe in order to respect the integrity of the work and the author’s right of making available the work). So there is no copyright infringement on the condition that

(a) the provider does not modify the information;

(b) the provider complies with conditions on access to the information;

(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and

(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.

Quite an interesting ruling. But I doubt that it will get much approval. While the Hamburg court in the thumbnail decision said that it is not the task of a court to invent new exceptions to the copyright holder's exclusivity, the Spanish appeal court did just that by combining fair use principles and requirements of the E-Commerce-Directive.


4. Canada: Linking to defamatory content - Crookes v. Wikimedia Foundation

In Crookes v. Wikimedia Foundation, Inc. (B.C. Sup. Ct. Aug. 29, 2008) the Supreme Court of British Columbia had to decide if under Canadian law linking to an article that contains statements alleged to be defamatory, does, by itself, constitute defamation. Liability could only exist if the link publisher made any statement relating to the defamatory material itself, the court said:

"[32] In the present case, although hyperlinks referred the reader to articles now claimed by the plaintiffs to be defamatory, the plaintiffs agree that the defendant did not publish any defamatory content on the p2pnet website itself. The defendant did not reproduce any of the disputed content from the linked articles on p2pnet and did not make any comment on the nature of the linked articles. In these circumstances, a reader of the p2pnet website who did not click on the hyperlinks provided would not have any knowledge of the allegedly defamatory content.


[34] I do not wish to be misunderstood. It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written "the truth about Wayne Crookes is found here" and "here" is hyperlinked to the specific defamatory words, this might lead to a different conclusion."

§      The ruling

Also see Neuburger, Canadian Court Rules Linking to Libel Isn't (Necessarily) Libel


5. USA: Google Book Search Settlement

Google and The Authors Guild, the Association of American Publishers said that they have settled a book scanning lawsuit for $125 million. The deal, which still needs approval from a federal court in New York, would clear the way for the company to provide easier online access to millions of copyrighted books.

Google began scanning and uploading books four years ago. However, unlike other countries where it only scanned books fallen out of copyright, in the USA it scanned books that were still copyright protected and made them available through its book search program - enraging publishers and authors. Three years ago, the Authors Guild and others filed a class action lawsuit against Google Book Search. As part of the agreement Google will compensate them at a minimum of $60 per work, costing it up to $90m of the $125m deal.


With this agreement, in-copyright, out-of-print books will now be available for readers in the U.S. to search, preview and buy online — something that was simply unavailable to date. Most of these books are difficult, if not impossible, to find. They are not sold through bookstores or held on most library shelves, yet they make up the vast majority of books in existence. Today, Google only shows snippets of text from the books where we don’t have copyright holder permission. This agreement enables people to preview up to 20% of the book.

What makes this settlement so powerful is that in addition to being able to find and preview books more easily, users will also be able to read them. And when people read them, authors and publishers of in-copyright works will be compensated. If a reader in the U.S. finds an in-copyright book through Google Book Search, he or she will be able to pay to see the entire book online. Also, academic, library, corporate and government organizations will be able to purchase institutional subscriptions to make these books available to their members. For out-of-print books that in most cases do not have a commercial market, this opens a new revenue opportunity that didn’t exist before.

For details of the agreement see the Google Press Release and The End of Snippet View: Google Settles Lawsuit with Book Publishers, New York Times. For German speaking readers see my post: Google Buchsuche - Überblick und erste Analyse des Vergleichs.

The agreement (141-page / 500KB PDF)


6. USA: Jones Day v. - Hyperlink creates false impression of affiliation? provides information about property transactions. One of their reports state the facts of real estate transactions of Jones Day associates, displays their pictures, and states the associates work for Jones Day. In addition, the report includes links to information about these associates appearing within Jones Day's website. Jones Day sued Blockshopper and alleges trademark infringement! Plaintiff contends Defendant's use of the Jones Day Marks and the links to the web site create the false impression that Jones Day is affiliated with/or approves, sponsors or endorses Defendant's business, which it does not.

Sounds ridiculous! That's pretty much, what the Electronic Frontier Foundation (EFF) is saying about the lawsuit: "some of the most preposterous trademark claims we've ever seen... If Jones Day were correct, no news site or blog could use marks to identify markholders, or links to point to further information about the markholders, without risking a lawsuit. But that is not the law, and Jones Day should know it."


7. USA: Hyperlink, death threats and violation of the First Amendment

A complaint to the U.S. District Court for the Eastern District of Wisconsin says that the First Amendment permitted plaintiff, Ms. Reisinger, to include on her personal web site a link to the Sheboygan Police Department and that the city's insistance that she remove it was unconstitutional.

The case is quite curious:

Ms. Reisinger was involved in the creation of a web site devoted to recall efforts of Mayor Perez. The mayor noticed that Mr. Reisinger - on her own business homepage - had a link to the City of Sheboygan Police Department. He asked the City Attorney if the link was permissible. The attorney answered that anyone can create a link to someone else's website very easily without the knowledge or consent of the linked party. Nethertheless the assistent to the mayor, indicated the mayor wanted the attorney to issue a cease and desist letter regarding the link. So Ms. Reisinger received such a notice and severed the link. She found the request very silly, but said she wanted to follow the "wish". But then the story really started: The police began an official investigation relative to the linking. Other web sites and blogs started ridiculing Ms. Reisinger. She now retained counsel. As a result the City of Sheboygan indicated that they wanted her to continue to use the link to the Police Department. But now it was too late. Ms Reisinger had already received death threats (she had to install video cameras at home...) and suffered a significant decrease in income. She now sues for compensatory damages in sum of 250.000 dollar and punitive damages.

Reisinger v. Perez, E.D. Wis, No 08-cv-00708, complaint filed 8/20/08


In short:

American Airlines is suing Yahoo! over the use of its trade marks to trigger ads for competing airlines. The company has previously settled a similar case with Google (American Airlines, Inc. v. Yahoo! Inc., 4:2008cv00626 (N.D. Tex. complaint filed Oct. 17, 2008); Justia page). For more information see: Goldman, Eric, American Airlines Sues Yahoo for Selling Keyword Advertising, Technology & Marketing Law Blog



New in legal resources

§      Fischman Afori, Orit, Implied License - An Emerging New Standard in Copyright Law (September 10, 2008). Santa Clara Computer and High Technology Law Journal, Vol. 25, 2008, available at SSRN:

§      Möller, Mirko, Die Nichtbenutzung einer nicht sichtbaren Marke, MarkenR 2008, 386

§      Schmelz, Christoph, Keyword-Advertising als Markenverletzung - Ende der Diskussion oder Diskussion ohne Ende?, MarkenR 2008, 196-199

§      Pollock, Rufus, Is Google the Next Microsoft? Competition, Welfare and Regulation in Internet Search (September 9, 2008). Available at SSRN:

§      Goryunov, Eugene, All Rights Reserved: Does Google's 'Image Search' Infringe Vested Exclusive Rights Granted Under the Copyright Law?(2008). John Marshall Law Review, Vol. 41, No. 2, 2008. Available at SSRN:

§      Munir, Abu Bakar / Teh, Tai Yong, Googling Data Protection: Don't be evil, C.T.L.R. 2008, 183-190

§      He, Huaiwen, Safe harbor provisions of Chinese law: How clear are search engines from liability?, Computer Law & Security Report 2008, 454-460

§      Peguera, Miquel, I just know that I (actually) know nothing: Actual knowledge and other problems in ISP liability case law in Spain, EIPR 2008, 280-285





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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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