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Update 62: March 29, 2009

1. Google wins Street View case in Pennsylvania
A judge has dismissed a lawsuit filed by a Pennsylvania family against Google. Plaintiffs had alleged invasion of privacy, trespass and unjust enrichment, because Google had published photos of their residence in its Street View feature. The street, in which the home of the plaintiffs is located is marked as "Private Road". Aaron and Christine Boring sued for compensatory and punitive damages, seeking more than 17.000 $.

The judge dismissed the invasion of privacy claim, because he saw no facts that were sufficient to establish that the intrusion could be expected to cause "mental suffering, shame or humiliation to a person of ordinary sensibilities." "While it is easy to imagine that many whose property appears on Google's virtual maps resent the privacy implications, it is hard to believe that any – other than the most exquisitely sensitive – would suffer shame or humiliation", the judge said. He deemed the contended suffering to be less severe because plaintiffs had failed to take readily available measures to protect their own privacy. They could have used a procedure provided by Google to remove the images from Google Street View. Unfortuantely the judge did not tell, why the plaintiffs could be refered to use Google's opt-out system, if the defandant was in fact violating their privacy rights. Seems to me like a circular argument.

As for the other claims, plaintiffs failed to allege a duty of care, that Google could have violated. They also could not support their contention that their property decreased in value.

So, according to the judge, the plaintiffs have failed to state a claim under any count.

The couple already aksed the judge to reconsider their dismissed lawsuit. Some excerpts from their motion for reconsideration:

"This case is about every little guy, once again being trampled upon by the big shoe of big business. With nowhere to turn but the American Courts, he is cast away to endure the pinpricks of trespass that bleed our American liberty to death. Whether the trespass is by a foreign king, or the royalty of big business, does not matter. The Borings, such as our American forefathers in millennia past, are entitled to proclaim, 'Google, Don't Tread On Me.'"

"The Borings should not need to post gates and guard dogs, nor should they need to institute batteries of cannons in their driveways. They should have the full power and authority of our American Courts at their defense. But, now, this Court has left the American right of private property helpless, injured, and without remedy."

"This Court tells Google that it is okay to enter onto a person's private property without permission. I would not teach that rule to my child. This Court's ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The Federal Court should free slavery, not create it."

"Google's defense is that the grass will stand back up, and there was no gate or guard dog. Or, possibly, that you can pick the fruit off that poison tree by: a) stopping what you are doing; b) going to a computer, if you know how to use one; c) accessing a computer at the cost of doing so; d) accessing the Internet at the cost of doing so; e) researching and becoming familiar with the Google program by going onto their website properties; f) removing the pictures Google acquired while trespassing on your property; and g) not pursuing the happiness you might otherwise be finding. All while they directly and indirectly advertise to you. The more Google injures, the more money they make."


2. Jones Day, Blogshopper settlement

What was deemed a rather ridiculous lawsuit, Plaintiff Jones Day claimed that Blogshopper'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 (see Update 60 for details). The parties have reached a settlement. Blockshopper can continue to link to Jones Day's site, but it must use the firm's Web address as the link. So great result for Jones Day: Instead of writing Daniel P. Malone Jr. is an associate in the Chicago office of Jones Day," BlockShopper must now write "Malone ( is an associate . . ."  Blockshopper had spent more than $100,000 defending itself against the lawsuit and was not afraid of loosing the lawsuit, but obviously couldn't afford to go on with the defense.

See: Jones Day settles lawsuit against small Internet site, defendants say,


3. Does Google violate antitrust laws by eliminating competition?

Vertical search is an expanding market where a lot of money can be made. The term "vertical search" refers to more or less specialized search engines for specific topics, such as Google News for news or YouTube for videos. There are already more searches conducted at YouTube or eBay than at Yahoo in several countries. TradeComet also operates a specialized search engine for B2B goods and services. To promote its web site TradeComet used the Google AdWords program and was quite successful at the beginning. Officials even meet with Google to further increase the effectiveness of the ad campaigns. In December 2005 Google praised Trade Comet as "site of the week." In May 2006, however, Google raised the minimum bids for keywords on which TradeComet bid. Instead of 5-10 cents, several keywords were only available at a minimum price of 5-10 dollars. These ad rates were way too expensive for the plaintiff to continue promoting itself within Google's online marketing network. So this move strangled plaintiffs primary source of search traffic, resulting in substantial drops in traffic and revenue (about 90%). Google explained to TradeComet that the increase was due to its poor landing page quality.

TradeComet alleges that Google manipulates its auctions to favor certain advertisers like over others. Google establishes minimum pricing thresholds that can differ by advertisers based on criteria , such as "Landing Page Quality", that is exclusively in Google's control. It is impossible to know how Google actually picks the winners and losers of its ad actions. In the eyes of TradeComet officials, Google learned that its search engine was a potential competitor. The lawyers stated that, “Google understood the threat that vertical search engines posed to its business mode.” Hence Google increased the bid rates for advertisement for the company by as much as 10,000 percent.

The suit could be a real danger to Google. So far, no court has said that Google has a monopoly. But the courts only considered an online, not a smaller search advertising market. After the aquisition of DoubleClick Google has strenghtened its position in the online advertising market and remarks by the Federal Trade Commission lead to the conclusion that the relevant market indeed is sponsored search advertising only. And on that market, Google probably has a monopoly share.

Also see: Goldman, Eric, TradeComet Sues Google for Antitrust Violations , Technology & Marketing Law Blog LLC v. Google, Inc., 09 CIV 1400 (SDNY complaint filed Feb. 17, 2009).


4. USA: Hyperlinks to Competing Products on web site with mark

The U.S. District Court for the Middle District of Pennsylvania held January 12, 2009 that an online company may have initially confused consumers by providing links to its products on a web site despite listing another company as a "featured brand" and denied a motion for summary judgement. had created a Leachco "featured brand" webpage in 2007. It displayed the "Leachco" trademark and included a section of the page entitled "Pregnancy Pillows". In the text, "Today's Mom Cozy Comfort" and "Serenity Star," denoted
clickable hyperlinks that, when selected, took the viewer to webpages containing non-Leachco products, including BabyAge's Cozy Comfort pillow, a lower-priced competitor of Leachco's Back'n'Belly pillow. Leachco argues that this webpage content constitutes an unlawful "bait and switch" whereby prospective customers are "baited" by Leachco's brand into visiting the Leachco "featured brand" webpage on the BabyAge Website, baited into pursuing a Leachco pregnancy pillow, and then "switched" to non-Leachco pregnancy pillows by the above-mentioned hyperlinks provided on the webpage. Inc. v. Leachco Inc., M.D. Pa., No. 07-1600, 1/12/09


In short

California is the first state to consider imposing restrictions on internet mapping sites like Google Earth or Microsoft Virtual Earth. With reports in mind that online satellite images were used to plan the attack in Mumbai last year, an introduced bill would make it illegal to post closs-up images of "soft targets" like government buildings, churches, schools and hospitals. For more details see: California lawmaker targets Internet mapping sites, The Mercury News 

The Dutch Supreme Court sent an AdWords case to the European Court of Justice (ECJ). With more than 20 questions on the subject, the court wants to know everything from the ECJ he can possibly say about adwords. For an English translation of the questions see: Portakabin vs. Primakabin: Dutch Supreme Court sends Adword case to ECJ, Class 46

The New York Times and Gatehouse Media settled claims that the news aggregator web site infringes on copyrights by posting news headlines from other sources verbatim (see Update 61 and the settlement order)

The European Union's Article 29 Working Party welcomed calls for common industry standars on search engine data retention policies, that would include efficient anonymisation and a maximum retention period of six months. Currently Microsoft anonymizes data after 18 months, Google after nine and Yahoo after three months. Last year the Working Party issued its "Opinion on data protection issues related to search engines", see Update 56.


New in Legal Resources

  • Goldman, Eric,Brand Spillovers. Santa Clara Univ. Legal Studies Research Paper No. 09-01; Harvard Journal of Law and Technology, Vol. 22, 2008. Available at SSRN:
  • Csillag, Sandra, Der Google-Urheberrechtsvergleich: Wer hat Rechte am digitalen Content?, medien und recht 2009, 23-27
  • Ott, Stephan, Das Internet vergisst nicht - Rechtsschutz für Suchobjekte, MMR 2009, 158-163
  • Ott, Stephan, Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2008, WRP 2009, 351-372





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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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