Google and Yahoo locked in legal battle with celebrities
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.
Argentine search engines told to block famous names
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
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.
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.
Google Cache is legal (the Megakini.com-case)
accused Google of copyright infringement by reproducing snippets from his
web site in the results page and by making available cached copies of his
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.
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.
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:
" 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.
 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
Canadian Court Rules Linking to Libel Isn't (Necessarily)
Google Book Search Settlement
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.
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.
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.
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.
of the agreement see the
Google Press Release
The End of Snippet View: Google Settles Lawsuit with
New York Times. For German speaking readers see my post:
Google Buchsuche - Überblick und erste Analyse des Vergleichs.
The agreement (141-page / 500KB PDF)
Jones Day v. Blockshopper.com - Hyperlink creates false impression of
Blockshopper.com 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.
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."
Hyperlink, death threats and violation of the First Amendment
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
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
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
Oct. 17, 2008);
For more information see: Goldman,
American Airlines Sues Yahoo for Selling Keyword
Technology & Marketing Law Blog
New in legal
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
Keyword-Advertising als Markenverletzung - Ende der Diskussion oder
Diskussion ohne Ende?, MarkenR 2008, 196-199
Is Google the Next Microsoft? Competition, Welfare and Regulation in
Internet Search (September 9, 2008). Available at SSRN:
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:
Bakar / Teh, Tai Yong, Googling Data Protection: Don't be evil, C.T.L.R.
Huaiwen, Safe harbor provisions of Chinese law: How clear are search engines
from liability?, Computer Law & Security Report 2008, 454-460
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