Google, the Authors Guild
and the Association of American Publishers submited a newer
version of their settlement (Amended Settlement Agreement,
ASA). The
Notice of Motion for Preliminary Approval of Amended
Settlement Agreement provides a good overview over the
modifications. The most important points are:
A work
is now included in the settlement only if, by January 5,
2009, it has been registered with the United States
Copyright Office, or published in Canada, the United
Kingdom, or Australia. This addresses concerns expressed
e.g. by the
French
and
German government.
As in
the original Settlement Agreement, the ASA provides that
Google may make Display Uses of Books that are
Commercially Available only after the Rightsholders
affirmatively authorize Google to do so. Although Google
is authorized by default to make Display Uses of Books
that are not Commercially Available, the Rightsholder
can turn those uses off at any time.
The ASA
clarifies the definition of “Commercially Available.”
Under the amended definition, a Book is categorized as
Commercially Available, and thus will not be displayed
without explicit permission, if new copies are available
for purchase by consumers in the United States, Canada,
the United Kingdom, or Australia from sellers anywhere
in the world.
Google
has agreed to give the Book Rights Registry (the “Registry”)
sixty days’ notice after Google classifies a Book as not
Commercially Available before it makes any Display Uses
of that Book.
The
parties deleted Section 3.8(a), which provided “Most
Favored Nation” status to Google.
The
proposed Final Judgment and Order of Dismissal provides
that the Court’s approval of the settlement does not
provide any immunity from the antitrust laws, such as
via the Noerr-Pennington Doctrine. This might enable the
District Judge and the DOJ to not address the antitrust
concerns at this point, but instead wait how the market
develops and act later (see Picker,
Accessing Competition Issues in the Amended Google Book
Search Settlement).
The ASA
now provides that the Registry’s Charter will ensure
that an independent fiduciary will be delegated the
responsibility to represent the interests of the
Rightsholders of unclaimed Books and Inserts with
respect to the exploitation of their works under the ASA.
The ASA
also changes the provisions relating to the use and
disposition of funds generated by a Book whose
Rightsholder has not made a claim. Now, the Registry
will hold these funds, for the benefit of that
Rightsholder, for at least ten years (extended from five
years under the original Settlement Agreement). ASA §
6.3(a)(i)(1). Beginning five years after the Effective
Date, subject to the approval of the fiduciary, the
Registry may use 25% of all funds earned in any one year
that have remained unclaimed for at least five years for
the sole purpose of locating the Rightsholders of
unclaimed works. ASA § 6.2(a)(i)(2).
The Registry still has
not the power to grant a similar license to any other company
that might want to make the same kinds of uses that Google
will be allowed to make under the settlement.
U.S. District Judge Denny
Chin granted
preliminary approval for the agreement and
ordered that groups will have until Jan. 28 to file
objections with the court. The fairness hearing will be
held on Feb. 18, 2010.
The South Dakota Supreme
Court upheld a trial court's decision that granted a motion
for a new trial alleging jury misconduct.
The plaintiff had claimed
that the seat belts unlatched during a deadly accident
because they were negligently designed. He brought suit
against the manufacturer Takata Corporation and its American
Subsidiary, TK Holdings, Inc. Prior to the trial the then
prospective juror Flynn conducted two quick Google searches,
one for Takata, one for TK Holdings. It was revealed to him
that Takata is a seat belt and airbag manufacturer and that
TK Holdings is the American subsidiary of Takata.
During the trial evidence
was presented that Takata had notice its seat belts were
defective. At least four drivers claimed their seatbelts had
come unbuckled during accidents. Ten other lawsuits had been
filed against Takata.
During deliberation,
juror Flynn told another juror about his web search. He said
he did not find any information on other lawsuits during his search. Three other
jurors heard the exchange. The jury finally reached its
verdict for the defense.
Following a motion by the plaintiff,
the trial court set aside the verdict on finding that one juror
had
introduced extrinsic evidence into deliberation that
prejudiced the jury and swayed the outcome. Extrinsic
evidence includes "knowledge relevant to the facts in
issue not obtained through the introduction of evidence but
acquired prior to trial."
The Supreme court agreed,
but did not announce a "hard and fast rule that all such
types of internet research by a juror prior to trial without
notice to the court and counsel automatically doom a jury's
verdict. Rather, as we do in such cases, we give deference
to the trial court, which had the distinct advantage of
being present throughout the nineteen-day trial."
3. Switzerland:
Lawsuit against Google Street View
Hanspeter Thür, the
federal data protection and information commissioner,
brought suit against Google over an alleged failure to
protect people's privacy on its Street View website. In a
statement he said: "Numerous faces and vehicle number
plates are not made sufficiently unrecognizable from the
point of view of data protection, especially where the
persons concerned are shown in sensitive locations, e.g.
outside hospitals, prisons or schools... The height from
which the camera on top of the Google vehicle films is also
problematic. It provides a view over fences, hedges and
walls, with the result that people see more on Street View
than can been seen by a normal passer-by in the street."
Prior to taking Google to
the country's Federal Administrative Court Thür had asked
Google to take various measures, but the company had not
complied with the request. Thür inter alia demanded that Google develop
a better system for blurring faces and licence plate numbers
to guarantee privacy protection.
We have seen several
keyword metatag cases in the last years, way too many,
considering that Google never used the information provided
in the keyword metatag for ranking its search results.
Nethertheless companies sued competitors for using their
mark as metatag. Untill recently, they could at least claim
that Google did not publically talk about it. But a few
months ago, Google confirmed what was known for years
in a
video.
Ling Chai, the CEO of the
software company Jenzabar sued the makers of a documentary,
because they had used "Jenzabar" as metatag, which Jenzabar
believes violates its trademark. And the company succeeded
in finding an expert witness,
who claims that the keyword metatag does in fact influence
Google's search results! It is not clear from his
statement how he has expertise in this field. We'll see if
the court finds that Google is lying about his algorithm. I
very much doubt it. Pretty much everyone in the search
optimizing field knows that the keyword metatag does not
matter to Google. And when you look at the statement of the
witness, he always mentions the importance of the keyword
metatag and the title of the web site. He shoud have left
out the metatag and he would be right. See e.g. Nr. 26:
"....it is my professional opinion that LB's
incorporation of Jenzabar's registered marks, as both
keyword meta-tags in the source code for pages on LB's
website, together with "JENZABAR" as the title tag, is a
primary reason for why Web search engines, including Google,
Bing, and others rank LB's website so high on a search of
the term "jenzabar".
5. Germany: A new
neighboring right for publishers?
The German government has
announced plans to create a new kind of copyright to protect
online journalism and to help major media companies to build
a succesfull business model on the internet. Although it is
not at all clear how a new neighboring right might look like,
newspaper and magazine publishers in Germany welcomed the
proposal. In my view this looks very much like an attempt to
hurt Google News and to protect dinosaur businesses that are
not able to adapt to the online world. One
can only speculate about what the government has in mind.
One possibility would be to require a license for any
commercial use of published material. That might even
include linking to it. But where does the commercial use of
an article start? Would a blogger, who takes part in the
Google AdSense programm, be required to ask for permission
to link to articles? And what about Google? In Germany, there are no ads on their News web site. And even if the
new right would be tailored to stop services like Google
News. Isn't it likely, Google would pay no money to index
the news web sites. Instead, I would expect Google
to just remove the sites of companies from the index, who
insist on a compensation. Google does not
depend on the media websites, while they receive up to half
of their visitors from Google. So they might experience a
significant loss of money from advertising on their web sites
(According to
Cashmore, the Wall Street Journal alone could face an
estimated 15 million US Dollar decline in revenue).
As long as there is no united front against Google, I see no
danger to the search giant.
Also important in this
context: Last month, Murdoch
announced he will block Google from indexing News Corps
materials and do a deal with Microsoft, so consumers will
have to use the Bing search engine to find Murdoch owned
content. The frightening aspect of this: If content provider
begin striking deals with search engines, we'll no longer
have a "single index of the entire web". Want to find articles
of newspaper A und B, then Google them, want to find articles
of newspaper C and D: You have to Bing them ...
News Corp. leaving
Google would be a mosquito bite on an elephant’s ass,
unnoticed by Google or by the audience. For there will
always be – as Murdoch laments – free competitors: the
BBC and Australian Broadcasting Corp, which he and his
son complain about, not to mention the Guardian, the
Telegraph, NPR, CBC and any sensible news organization
worldwide.
This silliness is
emblematic of the end of the Gutenberg age, the
industrial age, the age of control, the age of
centralization, Murdoch’s age. The problem here is that
Google-virgin Murdoch simply does not understand the
dynamics of the link economy. He roars against them.
Google et al do not take his content, they send it
audience and value. It is up to him to exploit that. The
business failure here is Murdoch’s, not Google’s.
6. UK: Interflora v.
Marks & Spencer: The questions!
As I have
mentioned here
earlier, the Adword case between Interflora and Mark &
Spencer has been referred to the European Court of Justice (ECJ). It
took Mr. Justice Arnold some time to formulate the exact
questions, but finally here they are:
Questions referred
Where a trader which
is a competitor of the proprietor of a registered trade
mark and which sells goods and provides services
identical to those covered by the trade mark via its
website (i) selects a sign which is identical (in
accordance with the Court's ruling in Case C-291/00)
with the trade mark as a keyword for a search engine
operator's sponsored link service, (ii) nominates the
sign as a keyword, (iii) associates the sign with the
URL of its website, (iv) sets the cost per click that it
will pay in relation to that keyword, (v) schedules the
timing of the display of the sponsored link and (vi)
uses the sign in business correspondence relating to the
invoicing and payment of fees or the management of its
account with the search engine operator, but the
sponsored link does not itself include the sign or any
similar sign, do any or all of these acts constitute
"use" of the sign by the competitor within the meaning
of Article 5(l)(a) of First Council Directive 89/104/EEC1
of 21 December 1988 ("the Trade Marks Directive") and
Article 9(l)(a) of Council Regulation 40/942
of 20 December 1993 on the Community trade mark ("the
CTM Regulation")?
Is any such use "in
relation to" goods and services identical to those for
which the trade mark is registered within the meaning of
Article 5(l)(a) of the Trade Marks Directive and Article
9(l)(a) of the CTM Regulation?
Does any such use
fall within the scope of either or both of:
(a) Article 5(l)(a)
of the Trade Marks Directive and Article 9(l)(a) of the
CTM Regulation; and
(b) (assuming that
such use is detrimental to the distinctive character of
the trade mark or takes unfair advantage of the repute
of the trade mark) Article 5(2) of the Trade Marks
Directive and Article 9(l)(c) of the CTM Regulation?
Does it make any
difference to the answer to question 3 above if:
(a) the presentation
of the competitor's sponsored link in response to a
search by a user by means of the sign in question is
liable to lead some members of the public to believe
that the competitor is a member of the trade mark
proprietor's commercial network contrary to the fact; or
(b) the search engine
operator does not permit trade mark proprietors in the
relevant Member State of the Community to block the
selection of signs identical to their trade marks as
keywords by other parties?
Where the search
engine operator (i) presents a sign which is identical
(in accordance with the Court's ruling in Case C-291/00)
with a registered trade mark to a user within search
bars located at the top and bottom of search pages that
contain a sponsored link to the website of the
competitor referred to in question 1 above, (ii)
presents the sign to the user within the summary of the
search results, (iii) presents the sign to the user by
way of an alternative suggestion when the user has
entered a similar sign in the search engine, (iv)
presents a search results page to the user containing
the competitor's sponsored link in response to the
entering by the user of the sign and (v) adopts the
user's use of the sign by presenting the user with
search results pages containing the competitor's
sponsored link, but the sponsored link does not itself
include the sign or any similar sign, do any or all of
these acts constitute "use" of the sign by the search
engine operator within the meaning of Article 5(l)(a) of
the Trade Marks Directive and Article 9(l)(a) of the CTM
Regulation?
Is any such use "in
relation to" goods and services identical to those for
which the trade mark is registered within the meaning of
Article 5(l)(a) of the Trade Marks Directive and Article
9(l)(a) of the CTM Regulation?
Does any such use
fall within the scope of either or both of:
(a) Article 5(l)(a)
of the Trade Marks Directive and Article 9(l)(a) of the
CTM Regulation; and
(b) (assuming that
such use is detrimental to the distinctive character of
the trade mark or takes unfair advantage of the repute
of the trade mark) Article 5(2) of the Trade Marks
Directive and Article 9(l)(c) of the CTM Regulation?
Does it make any
difference to the answer to question 7 above if:
(a) the presentation
of the competitor's sponsored link in response to a
search by a user by means of the sign in question is
liable to lead some members of the public to believe
that the competitor is a member of the trade mark
proprietor's commercial network contrary to the fact; or
(b) the search engine
operator does not permit trade mark proprietors in the
relevant Member State to block the selection of signs
identical to their trade marks as keywords by other
parties?
If any such use does
fall within the scope of either or both of Article
5(l)(a) of the Trade Marks Directive/Article 9(l)(a) of
the CTM Regulation and Article 5(2) of the Trade Marks
Directive/Article 9(l)(c) of the CTM Regulation:
(a) does such use
consist of or include "the transmission in a
communication network of information provided by a
receipt of the service", and if so does the search
engine operator "select or modify the information",
within the meaning of Article 12(1) of European
Parliament and Council Directive 2000/31/EC3
of 8 June 2000 on certain legal aspects of information
society services, in particular electronic commerce, in
the Internal Market ("the E-commerce Directive")?
(b) does such use
consist of or include "the automatic, intermediate and
temporary storage of information, performed for the sole
purpose of making more efficient the information's
onward transmission to other recipients of the service
upon their request" within the meaning of Article 13(1)
of the E-commerce Directive?
(c) does such use
consist of or include "the storage of information
provided by a recipient of the service" within the
meaning of Article 14(1) of the E-commerce Directive?
(d) if the use does
not consist exclusively of activities falling within the
scope of one or more of Article 12(1), 13(1) and 14(1)
of the E-Commerce Directive, but includes such
activities, is the search engine operator exempted from
liability to the extent that the use consists of such
activities and if so may damages or other financial
remedies be granted in respect of such use to the extent
that it is not exempted from liability?
If the answer to
question 9 above is that the use does not consist
exclusively of activities falling within the scope of
one or more of Articles 12-14 of the Ecommerce Directive,
may the competitor be held jointly liable for the acts
of infringement of the search engine operator by virtue
of national law on accessory liability?
____________
1
- First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade
marks OJ L 40, p. 1
2
- OJ L 11, p. 1
3
- OJ L 178, p. 1
There are currently seven
cases pending at the ECJ (see this
overview). The Advocate
General's Opinion on the French cases was published on 22
September 2009 (for more
information click here).
7. Germany: Criminal
Investigation against Google
A criminal investigation
has been launched against Google in Hamburg, Germany,
because of its YouTube web site. Jens Schippmann, attorney
of a group of several German independent labels, publishers
and artists has filed claims with the public prosecutor's
office. He alleges that Google didn't respond to requests to
take down more than 8000 infringing videos and that users
would utilize YouTube as a kind of "covert file-sharing
platform".
It is still unclear if
the ongoing investigation will ever lead to a court case.
8. USA: Google sues over
alleged work-at-home scams
Google is suing Pacific WebWorks over the creation of scam
ads ("Use Google to Make 1000s
of Dollars!" or "Easy Cash with Google: You Could be Making up to
$978 a Day Working from Home!") that have fooled thousands of
job hunters into thinking they were applying for work with the
internet giant.
Because the logo is displayed prominently on the ads, Google
claims the unaffiliated websites are misusing its trademark to
deceive unsuspecting consumers, many of whom have turned to Google
to lodge complaints and ask for refunds. According to Google,
consumers who sign up for
these products either receive nothing except fraudulent credit card
charges, or DVDs with computer viruses.
In the
click fraud case
Lambotte v. IAC/InterActiveCorp. the judge
certified claims for breach of contract and fraud under
California’s unfair competition law for the following class:
All persons or entities in the United States who entered
into form contracts for pay-per-click advertising through
Citysearch.com, paid money for this advertising service, and
experienced click fraud by reason of double clicks or
Citysearch's failure to apply automatic filters to traffic
from its syndication partners up through March 23, 2007.
For more information see: Goldman, Eric,
Citysearch Click Fraud Class Certified - Menagerie v.
Citysearch,
Technology & Marketing
Law Blog
Shooting victim Michael Trkulja is
suing Google in Australia. He claims that Google is liable
because searches on his name would take users to pages
suggesting that Trkulja was involved in organized crime
operations... For more information see:
News.com.au:
Shooting victim Michael Trkulja sues Google
The
Danish Supreme Court refused to issue an injunction on the use
of third party registered trade marks as adwords. The judges
doubted whether the registration of a keyword was a “commercial
use” (class
46).
The music company Blues Destiny
Records has sued Google and Microsoft in the northern district
of Florida for copyright infringement for allegedly returning
results that allow users to find pirated music hosted by the
file-sharing service RapidShare. Blues Destiny Records
LLC v. Google, Inc., 3:09-cv-00538-WS-EMT (N.D. Fla.
complaint filed Dec. 7, 2009);
for more information see: Goldman, Eric,
Record Label Sues Google and Microsoft for Linking to Infringing
Music--Blues Destiny v. Google, Technology & Marketing Law
Blog
A florist in New
Zealand is facing a possible prison sentence after
allegedly changing her competitors' details on the
Google Maps website (Stuff.co.nz).
10.
New in Legal Resources
Cornthwaite, Jonathan, AdWords or Bad Words? A UK Perspective and
Trademark Infringement, E.I.P.R. 2009, 347-352
Wieduwilt, Hendrik, Warnschuss für Web 2.0-Juristen, Anmerkung zu LG
Hamburg - Google AGB, K&R 2009, 741-742
Shoemaker, Don't Blame Google: Allowing
Trademark Infringement Actions Against Competitors Who Purchase
Sponsored Links on Internet Search Engines under the Initial
Interest Confusion Doctrine, Catholic University Law Review, v58 no2
p535-66 Wint 2009
Laidlaw, Private Power, Public
Interest: An Examination of Search Engine Accountability,
International Journal of Law & Information Technology v17 no1
p113-45 Spr 2009
Ott, Stephan, EuGH: Schlussanträge in den AdWords-Verfahren - Konsequenzen für die Anbieterhaftung in Deutschland,
MMR-Aktuell 11/2009, S. V-VI
Dreier, Thomas, Thumbnails als Zitate?, in: Festschrift für
Achim Krämer, 2009, S. 225-239
Jahn, David / Striezel, Julia,
Google Street View is watching you, K&R 2009, 753-758
