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.'"
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."
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."
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
). The parties have reached a settlement.
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
is an associate . . ."
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
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 business.com 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,
TradeComet Sues Google for Antitrust Violations
, Technology & Marketing Law Blog
TradeComet.com LLC v. Google, Inc., 09 CIV 1400 (SDNY
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.
Babyage.com 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.
BabyAge.com Inc. v. Leachco Inc., M.D. Pa., No. 07-1600, 1/12/09
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
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
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
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
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
Die Entwicklung des Suchmaschinen- und Hyperlink-Rechts im Jahr 2008
WRP 2009, 351-372