The structure of search engine law

Iowa Law Review

Volumn 93, Issue 1, 2007, Pages 1-63

  Grimmelmann, James ^a  

^a New York Law School ^*

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38849180110     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (322)

1. See generally JOHN BATTELLE, THE SEARCH: HOW GOOGLE AND ITS RIVALS REWROTE THE RULES OF BUSINESS AND TRANSFORMED OUR CULTURE (2005) (describing the history and significance of Internet search);
2. JEAN-NOËL JEANNENEY, GOOGLE AND THE MYTH OF UNIVERSAL KNOWLEDGE (Teresa Lavender Fagan trans., 2007) (discussing the implications of search for European cultural heritage);
3. DAVID A. VISE & MARK MALSEED, THE GOOGLE STORY (2005) (describing Google's history);
4. IAN H. WITTEN ET AL., WEB DRAGONS: INSIDE THE MYTHS OF SEARCH ENGINE TECHNOLOGY (2007) (analyzing the role of search engines as the gatekeepers of information on the web).
5. See, e.g., R. Scott Rappold, Bumbling Bigg City Burglars Got $12K, COLO. SPRINGS GAZETTE, July 10, 2007, available at http://www.gazette.com/articles/safes_24620_article. html/ackerman_google.html (describing criminals who Googled for "how to crack a safe" from a computer at the office they were burglarizing).
6. Many scholars have written about one legal controversy or another that involves a search engine. Fewer have linked the multiple, interconnected problems that search engines raise. The essential articles are Niva Elkin-Koren, Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing, 26 DAYTON L. REV. 179 (2001) ;
7. Urs Gasser, Regulating Search Engines: Taking Stock and Looking Ahead, 9 VALE J.L. & TECH. 201 (2006), available at http://www.yjolt.org/old/files/20052006Issue/Spring06-gasser.pdf;
8. Eric Goldman, Search Engine Bias and the Demise of Search Engine Utopianism, 9 YALE J.L. & TECH. 188 (2006), available at http://www.yjolt.org/old/files/20052006Issue/spring06- goldman.pdf;
9. Lucas Introna & Helen Nissenbaum, Shaping the Web: Why the Politics of Search Engines Matters, 16 INFO. SOC'Y 169 (2000);
10. Frank Pasquale, Rankings, Reductionism, and Responsibility, 54 CLEV. ST. L. REV. 115 (2006);
11. and Frank Pasquale & Oren Bracha, Federal Search Commission ? Access, Fairness, and Accountability in the Law of Search (2007), available at http://ssrn.com/abstract=1002453.
12. Two unpublished theses also take a usefully broad view of search. See Michael Zimmer, The Quest for the Perfect Search Engine: Values, Technical Design, and the Flow of Personal Information in Spheres of Mobility (2007) (unpublished Ph.D. dissertation, New York University) (on file with the Iowa Law Review);
13. Alejandro M. Diaz, Through the Google Goggles: Sociopolitical Bias in Search Engine Design (2005) (unpublished master's thesis), available at http://epl.scu.edu:16080/~stsvalues/readings/Diaz_thesis_final.pdf.
14. Joshua A.T. Fairfield's The Search Interest in Contract, 92 IOWA L. REV. 1237 (2007), is, one may hope, the first of a wave of scholarly attention to the consequences of having omnipresent, powerful search tools available for legal questions that do not directly involve search.Although not scholars, some bloggers have so deeply immersed themselves in the search world that they have a synoptic perspective on the field. A few blogs are indispensable reading for anyone interested in search.
15. See John Battelle, SEARCHBI.OG, http://battellemedia.com/ ;
16. Matt Cutts, GADGETS, GOOGLE, AND SEO, http://www.mattcutts.com/blog/;
17. Philipp Lenssen et al., GOOGLE BLOGOSCOPED, http://blogoscoped.com/;
18. SEARCH ENGINE WATCH, http://blog. searchenginewatch.com/blog/;
19. Danny Sullivan et al., SEARCL I ENGINE LAND, http://searchengineland.com/.
20. Cf. Pasquale & Bracha, supra note 3 (comparing institutional forms for search regulation).
21. See Google, Inc., Registration Statement (Form S-1) (Apr. 29, 2004), available at http://www.sec.gov/Archives/edgar/data/1288776/ 000119312504073639/dsl.htm.
22. See Elwell v. Google, Inc., No. 05 Civ. 6487, 2006 U.S. Dist. LEXIS 3114, at *1 (S.D.N.Y. Jan. 31, 2006).
23. Cf. Frank H. Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207, 207 (arguing that there neither is, nor should be, a distinct body of cyberlaw). Lawrence Lessig has responded that "more dian law alone enables legal values, and law alone cannot guarantee them," and has argued that cyberlaw (or "Internet law," depending on one's view of the subject) provides a broader view of law itself.
24. Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach, 113 HARV. L. REV. 501, 549 (1999). I do not make the same claims for search engine law. Search engines are more important in the consideration of what law should do than in the consideration of what law is.
25. The description of search engine operations in this Part draws on John Battelle's THE SEARCH, supra note 1.
26. Extended discussion of how search engines work and the business models of the search industry is available there and in David A. Vise and Mark Malseed's THE GOOGLE STORY, supra note 1, and WITTEN ET AL., supra note 1.
27. I say "content" rather than "information" to distinguish it from other significant information flows connected with search.
28. See Electronic Frontier Foundation, Google Copies Your Hard Drive - Ciwernment Smiles in Anticipation, DEEP LINKS, Feb. 9, 2006, http://www.eff.org/press/archives/2006/02/09 ("'[Google Desktop] highlights a key privacy problem in the digital age.'" (quoting Cindy Cohn, Legal Director, Electronic Frontier Foundation)).
29. As discussed in more detail below, such third parties include copyright holders, targets of libel, censorious governments, and others. See infra Part II.C.
30. See Google, How Google Crawls My Site, http://www.google.com/ support/webmasters/bin/topic.py?topic=8843.
31. See Danny Sullivan, The Evolution of Paid Inclusion, SEARCH ENGINE WATCH, July 2, 2001, http://searchenginewatch.com/showPage.html?page=2163971 ("Paid inclusion programs mean that, in exchange for a payment, a search engine will guarantee to list pages from a web site.").
32. See, e.g., Google, About Google Base, http://base.google.com/ support/bin/answer.py?answer=59260&hl=en (describing Google Base as "a place where you can easily submit all types of online and offline content, which we'll make searchable on Google").
33. See Midomi Video Tour, http://www.midomi.com/index.php?action= main.video ("midomi lets you find music by singing or humming!").
34. See Bob Tedeschi, Shopping Site Offers a Way to Raid a Celebrity's Closet, N.Y. TIMES, Nov. 13, 2006, at C4; Like Visual Search, http://www.like.com ("Like.com is a visual search engine that lets you find items by color, shape, and pattern").
35. See Andrei Broder, A Taxonomy of Web Search, SIGIR FORUM, Fall 2002, available at http://www.sigir.org/forum/ F2002/broder.pdf. Broder's taxonomy is obviously not exhaustive, nor are its three categories entirely distinct from one another, but it provides a good first approximation.
36. The closest substitutes are probably the home page for Apple Corps, Ltd., http://www.thebeatles.com/ (the conglomerate parent of Apple Records), and The Complete Apple Records, http://www.schomakers.com/ (an unaffiliated site with a complete Apple Records discography).
37. See Goldman, supra note 3, at 196. As Goldman explains, this refinement of results is a critical process by which users correct for ambiguities in their initial queries-and the interactivity of the process argues against trying to infer a single fixed meaning for a query. Id.
38. The best available reference on search algorithms is AMY N. LANGVILLF. & CARI. D. MEYER, GOOGLE'S PAGERANK AND BEYOND: THE SCIENCE OF SEARCH ENGINE RANKINGS (2006), which provides a clear presentation of Google's PageRank and related algorithms and contains an extensive bibliography of the technical literature on search ranking.
39. But see DEBORAH FALLOWS, PEW INTERNET & AM. LIFE PROJECT, SEARCH ENGINE USERS 17 (2005), http://www. pewinternet.org/pdfs/PIP_Searchengine_users.pdf (finding that sixty-two percent of search engine users were unaware of the distinction between search results and advertisements).
40. See BATELLE, supra note 1, at 109-21. See generally Benjamin Edelman & Michael Ostrovsky, Strategic Bidder Behavior in Sponsored Search Auctions, 43 DECISION SUPPORT SYS. 192 (2007), available at http://www.benedelman.org/ publications/cycling-060703.pdf (discussing ways to reduce strategic behavior).
41. See also F. Gregory Lastowka, Search Engines Under Siege: Do Paid Placement Listings Infringe Trademarks?, 14 INTELL. PROP. & TECH. L.J. 1, 2 (2002). The process is closely related to paid inclusion; in each, a content provider has paid the search engine in the hope of being seen by users entering particular queries. Id. at 2.
42. But see Thomas A. Weber & Zhiqiang (Eric) Zheng, A Model of Search Intermediaries and Paid Referrals, (Wharton Sch. OPIM, Working Paper No. 02-12-01, 2006), available at http://ssrn.com/abstract=601903 (arguing that ranking based on provider bids decreases overall social welfare).
43. See BATTELLE, supra note 1, at 142.
44. A full discussion of the business issues involved in search engine advertising is beyond the scope of this paper. As Tal Zarsky has explained in correspondence, the different billing models have significantly different implications for the incentives of search engines and advertisers and for the privacy of search engine users. Thus, for example, under a pay-per-click system, search engines will try to favor not just those ads for which advertisers will pay the most per click but also those ads that will generate the most clicks. Advertisers, in turn, will therefore be able to purchase prominent advertising placement more cheaply if their ads are well designed to encourage clicks. The process of monitoring clicks, however, is both vulnerable to fraud and requires close observation of user behavior-two facts that implicate the general tension between openness and transparency in search advertising and search engine operations. E-mail from Dr. Tal Zarsky, Law Faculty, Haifa University, to James Grimmelmann (Dec. 31, 2006, 12:56) (on file with the Iowa Law Review); see also Ben Elgin, The Vanishing Click-Fraud Case, BUSINESSWEEK ONLINE, Dec. 4, 2006, available at http://www.businessweek, com/print/ technology/content/ dec2006/tc20061204_923336.htm.
45. The Alexa Toolbar uses this strategy. Once installed in a user's browser, it displays extra information about the pages that the user visits, including related links. In exchange, it can track which pages users visit. This aggregate user data is valuable even just as a Nielsen-type rating for web pages.
46. See Charles C. Mann, How Click-Fraud Could Swallow the Internet, WIRED, Jan. 2006, available at http://www.wired.com/wired/archive/14.01/fraud_pr.html (discussing the ramifications of click fraud).
47. Affiliate advertising and affiliate fraud do not involve search as such. They are, however, a good example of the Protean nature of search technology. The algorithms that can determine whether a web page is relevant to a particular query are the same kind of algorithms that can determine whether a web page is a good place to show a particular ad.
48. See Nico Brooks, The Atlas Rank Report: How Search Engine Rank Impacts Traffic, ATLAS INST. (2004), http://www. adassolutions.com/WorkArea/showcontent.aspx?id=1440& LangType=133. Users are far more likely to click on the first result in a list shown to them than on any other result; if they are shown a page of ten results, only a small fraction of them will click through to see even the second page. Results after the hundredth or so may as well not exist.
49. See David Kesmodel, 'Optimize'Rankings at Your Own Risk, WALL ST. J. ONLINE, Sept. 23, 2005, http://www.startupjournal.com/ecommerce/20050923-kesmodel.html; Google, What's an SEO? Does Google Recommend Working with Companies That Offer to Make My Site Google-Friendly?, http://www.google.com/support/webmasters/bin/answer.py?answer= 35291.
50. Link farms have cropped up in some surprising places. See Andy Baio, Wordpress Website's Search Engine Spam, WAXY.ORG, Mar. 30, 2005, http://www.waxy.org/archive/ 2005/03/30/wordpres.shtml (homepage for "popular open-source blogging software");
51. Philipp Lenssen, Forbes Spam?, GOOGLE BLOGOSCOPED, Apr. 17, 2007, http://blogoscoped. com/archive/2007-04-17- n53.html (Forbes magazine);
52. Blake Ross, Stanford Daily Link Spam Harms the Web and Students, BLAKEROSS.COM, May 27, 2005, http://blakeross.com/index.php?p=136 (college newspapers).
53. See, e.g., Lee Gomes, Our Columnist Greates Web 'Original Content' But Is in for a Surprise, WALL ST. J., Mar. 1, 2006, at B1, available at http://online.wsj.com/public/article/ SB114116587424585798-0qH9qUYuUug_vRSFKGvxlEwLGw_20070301.html?mod=blogs; Wikipedia, Wikipedia: Send in the Clones, http://en.wikipedia.org/wiki/ Wikipedia: Send_in_the_clones (noting that much Wikipedia content is now available on other sites and discussing potential methods of competition). Cf.
54. Stephen Baker, Asbestos and the Art of Blogging for Money, BUSINESSWEEK ONLINE, May 27, 2005, http://www.businessweek. com/the_thread(blogspotting/archives/2005/05/asbestos_and_th.html (describing an experiment in which Michael Buttington created a topical blog on asbestos specifically to capture some of the money that lawyers would pay per click on ads triggered by related keywords). There is no clear line between such experiments and "real" professional blogs.
55. See Ben Edelman & Hannah Rosenbaum, The Safely of Internet Search Engines, MCAFEE SITEADISER, May 12, 2006, http://www.siteadvisor.com/studies/search_safety_may2006.html ("Despite search engines' efforts, we see too many sites trying to deceive unsuspecting users.").
56. See Ben Edelman, False and Deceptive Pay-Per-Click Ads, Oct. 10, 2006, http://www.benedelman.org/ppc-scams/ (describing ads that make false or misleading claims).
57. See, e.g., Declan McCullagh, Dotster Named in Massive Cybersquatting Suit, CNET NEWS, June 2, 2006, http://news.com.com/ 2102-1032_3-6079567.html (discussing a lawsuit against a large domain-name registrar).
58. See Six Apart, Six Apart Guide to Combating Comment Spam, http://www.sixapart. m/pronet/comment_spam.html.
59. .See Christopher Heun, Spam Blogs Pollute Internei Search, INFORMA ITONWEEK, May 15, 2006, http://www.informationweek. com/.showArticli'.jhtml?articleID=l87202310.
60. .See Will Baude, The Remains of Crescat CRESCAT SENTKNTLA (NOV. 5, 2006), http://www.crescatsententia.net/archives/ 2006/11/05/#006824 (describing the loss of "crescatsentenlia.com," previous home of a popular legal blog, to an SEO domain-squatter).
61. See Referer Log Spam, METAFILTER (Oct. 24, 2002), http://www.metafilter.com/21063/ (discussing SEO attempts to fill a referer log with spammed URLs).
62. Declan McCuIlagh, AOL's Disturbing Glimpse into Users'Lives, CNET NEWS, Aug. 8, 2006, http://news.com.com/2100-9588_22-6103098.html.
63. Id.
64. Lee Gomes, What Are Web Surfers Seeking? Well, It's Jusl What You Think, WALL ST.J., Aug. 16, 2006, at B1.
65. Michael Barbaro & Tom Zeller Jr., A Face is Exposed for AOL Searcher No. 4417749, N.Y. TIMF.s.Aug. 9, 2006, at Al.
66. In the terminology of Daniel Solove's A Taxonomy of t;rivacy, 154 U. PA. L. REV. 477, ?191-561 (2006), a search engine could harm a user through disclosure, breach of confidentiality, decisional interference, exposure, identification, secondary use, aggregation, and surveillance.
67. For extensive discussion of the privacy implications of search, see Zimmer, supra note 3. TaI Zarsky, in Mine Your Own Business: Making the Case for the Implications of the Data Mining of Personal Information in the Form of Public Opinion, 5 YALF. J.L. & TECH. 4, 37-38 (2003), argues that the aggregation of information about consumer habits can lead to a harmful "autonomy trap."
68. Julie Cohen's A Right to Head Anonymously: A Closer Look at "Copyright Management" in Cyberspace, 28 CONN. L. REV. 981 (1996) explains clearly the dangerous chilling effect of surveillance of one's reading habits.
69. See, e.g., Chance v. Ave. A, Inc., 165 K. Supp. 2d 1153, 1155 (W.D. Wash. 2001) (interpreting 18 U.S.C. §§1030, 2511(2)(a), 2701 (2000)); In re DoubleClick Inc. Privacy Litig., 154 F. Supp. 2d 497, 500 (S.D.N.Y. 2001) (interpreting 18 U.S.C. §§1030, 2510, 2701).
70. See, e.g., In re JetBlue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299, 330 (E.D.N.Y. 2005) (interpreting 18 U.S.C. S 2701). Legislation to change this baseline and require the deletion of stored queries was introduced in the 109th Congress, but it thed in committee. See. Eliminate Warehousing of Consumer Internet Data Act of 2006, H.R. 4731, 109th Cong, (introduced Feb. 8, 2006, referred to committee Feb. 17, 2006).
71. See, e.g., In re Nw. Airlines Privacy Litig., No. 04-126, 2004 U.S. Dist. LEXIS 10580, at ast; 15-17 (D. Minn. June 6, 2004) (dismissing a breach of contract claim); In re Geocities, 127 F.T.C. 94, 94 (1999) (entering an FTC consent order without fine or punishment).
72. See generally COMPUTER CRIME AND INTELLECTUAL PROP. SECTION, CRIMINAL Drv., U.S. DEP'T OF JUSTICE, SEARCHING AND SEIZING COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS (2002), available at http://www.cybersafe.gov/criminal/cybercrime/ s&smanual2002.pdf.
73. See, e.g., Anne Broache, Google to Hand over Brazilian User Data, CNET NEWS, Sept. 5, 2006, http://news.com.com/2061-10812_3- 6112176.html;
74. Philippe Naughton, Yahoo Blamed for Jailing of Chinese Reporter, TIMES (LONDON) ONLINE, Sept. 7, 2005, http://business. timesonline.co.uk/tol/business/industry_sectors/media/ article563772.ece.
75. See, e.g., Jonah Engle, Buyer Beware: eBay Security Chief Turns Website into Arm of the Law, THE NATION ONLINE, June 20, 2003, http://www.thenation.com/doc/20030707/engle.
76. See FED.R.CIV.P. 45(c).
77. Gonzales v. Google, 234 F.R.D. 674, 683-86 (N.D. CaI. 2006). AOL, Yahool, and Microsoft did not resist subpoenas served on them for similar data. Id. at 679.
78. See, e.g., O'Grady v. Superior Court, 139 CaI. App. 4th 1423 (CaI. Ct. App. 2006) (granting reporters' motion to quash a subpoena served on an ISP to learn the identity of a confidential source); Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 568 (S.D.N.Y. 2004) (requiring an ISP to disclose the identities of copyright-infringement defendants) ; Doe v. 2TheMart.com, Inc. 140 F. Supp. 2d 1088, 1097-98 (W.D. Wash. 2001) (requiring a showing that the need to learn the identity of a non-party is "directly and materially relevant to a core defense in the underlying . . . litigation").
79. Digital Millennium Copyright Act, 17 U.S.C. §512(h) (2000).
80. In re Charter Commc'ns, Inc., Subpoena Enforcement Matter, 393 F.3d 771, 777-78 (8th Cir. 2005); Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1238-39 (D.C. Cir. 2003).
81. See Ryan Singel, How to Foil Search Engine Snoops, WLRED.COM, Jan. 20, 2006, http://www.wired.com/news/ technology/l,70051-0.html (recommending that users delete "cookies" each week or use a service that "masks the origins" of a query and evades filters).
82. See generally Benny Chor et al., Private Information Retrieval, 45 J. OF THE ACM 965 (1998), available at http://www.cs.technion.ac.il/-benny/PIR.pdf.
83. See Wakaha Ogata & Kaoru Kurosawa, Oblivious Keyword Search, 20 J. COMPLEXITY 356, 357 (2004); Daniel C. Howe & Helen Nissenbaum, TrackMeNot, http://mrl.nyu.edu/~dhowe/TrackMeNot/ (describing a program that obfuscates actual web searches).
84. See, e.g., Bruce Schneier, TrackMeNot, SCHNEIER ON SECURITY (Aug. 23, 2006), http://www.schneier.com/blog/archives/2006/ 08/trackmenot_1.html ("Let's count the ways [TrackMeNot] doesn't work.").
85. See infra Part ILD.
86. Batya Friedman & Helen Nissenbaum, Bias in Computer Systems, 14 ACM TRANSACTIONS ON INFO. SYS. 330, 332 (1996) (emphasis omitted).
87. See CASS SUNSTEIN, REPUBLIC.C OM 8-10 (2001) (arguing that users will choose to see only content confirming their preexisting biases if they are given total control over their information inputs). But see NICHOLAS NEGROPONTE, BEING DIGITAL 163-65 (1995) (positing that users have tastes both for narrowly personalized information and for the common information seen by many others).
88. See infra Part II.C, and particularly Part II.C.4, for more on the issues raised by search censorship.
89. See Clive Thompson, Google's China Problem (and China's Google Problem), N.Y. TIMES, Apr. 23, 2006, (Magazine), at 63, available at http://www.nytimes.com/2006/04/23/magazine/- 23google.html.
90. See, e.g., Google's Gag Order: An Internet Giant Threatens Free Speech, PERRSPECTIVES, June 20, 2004, http://www.perrspectives.com/ articles/art_gagorder01.htm (claiming apparent conservative bias);
91. Rightmarch.com, Google says NO to Conservative Ads, http://www. rightmarch.com/google.htm (claiming liberal bias). But see Eric Ulken, A Question of Balance: Are Google News Search Results Politically Biased? (May 5, 2005) (unpublished report, USC Annenberg School for Communication), available at http://ulken.com/thesis/googlenews-biasstudy.pdf (claiming no bias toward either side in Google News selection of articles).
92. See, e.g., Sergey Brin & Lawrence Page, The Anatomy of a Large-Scale Hypertextual Web Search Engine, at App. A, http://infolab. stanford.edu/~backrub/google.html ("[W]e expect that advertising funded search engines will be inherently biased towards the advertisers and away from the needs of the consumers."). But see Google, Why We Sell Advertising, Not Search Results, http://www.google.com/honestresults.html.
93. See Introna & Nissenbaum, supra note 3, at 175-76.
94. John Hiler, Google. Blogs - How Weblogs Influence a Billion Google Searches a Week, MICROCONTENT NEWS, Feb. 26, 2002, http://www.microcontentnews.com/articles/googleblogs.htm, available at http://web.archive.org/web/20030205011440/http://www.microcontentnews.com/ articles/googleblogs.htm;
95. see also Ulken, supra note 64 (claiming inclusion of "non-traditional news sources" in Google News creates increased prominence for extreme viewpoints). Cf. Anil Dash, Nigritude Ultramarine, DASHES.COM, June 4, 2004, http://www.dashes.com/anil/2004/06/04/nigritude_ultra (describing how collaboration among blog authors to link Dash's entry using keywords "nigritude ultramarine" nearly won an SEO contest).
96. Matthew Hindman et al., "Googlearchy": How a Few Heavily-Linked Sites Dominate Politics on the Web 1 (July 28, 2003) (unpublished manuscript), available at http://www.cs.princeton.edu/~kt/mpsa03.pdf.
97. Compare Junghoo Cho Sc Sourashis Roy, Impact of Search Engines on Page Popularity 1 (2004) (unpublished manuscript, available, at http://oak.cs.ucla.edu/~cho/papers/chobias.pdf) ("New and valuable pages are ignored just because they have not been given a chance to be noticed by people."), with Santo Fortunato et al., Topical Interests and the Mitigation of Search Engine Bias, 103 PROC. NAT. ACAD. Sci. 12, 684, Aug. 22, 2006, available at http://cxnets.googlepages.com/PNAS_engine.pdf ("Yet, despite the rich-get-richer dynamics implicit in the link analysis used to rank results, the use of search engines appears to mitigate the average traffic attraction of high-degree pages.").
98. See Clay Shirky, Power Laws, Weblogs, and Inequality, CLAY SHIRKY'S WRITINGS ABOUT THE INTERNET (Feb. 8, 2003), http://www.shirky.com/writings/ powerlaw_weblog.html ("Inequality ... is a reliable property that emerges from the normal functioning of the system."). Notably, even where scholars agree on the overall distribution of attention, they disagree on its implications.
99. -1 powerlaw distribution is a sign of diversity).
100. See, e.g, Diaz, supra note 3, at 147 ("The complexity and opacity of search technology makes it almost impossible for users to notice what is 'missing' from their search results.").
101. But see James Grimmelmann, Note, Regulation by Software, 114 YALE LJ. 1719, 1734-38 (2005) (observing that some algorithms are so complicated that it may not be possible to say "why" a computer made a particular decision).
102. See, e.g., Hubbert v. Dell Corp., 359 Ill. App. 3d 976, 983-84 (111. App. Ct. 2005) (holding enforceable the arbitration clause in the "Terms and Conditions" on Dell's web site).
103. See Letter from Heather Hippsley, Acting Associate Director, F.T.C. Division of Advertising Practices, to [Search Engine Company] (June 27, 2002), available at http://www.ftc.gov/os/closings/staff/ commercialalertattatch.htm.
104. See Rebecca Tushnet, KinderStart: The Return, 43(B)LOG (Sept. 20, 2006), http://tushnet.blogspot.com/2006/09/kinderstart-return.html ("If Google continues to tell searchers one tiling about how search results are generated and tell webmasters another, it might behoove the FTC-the only entity with a realistic chance of affecting Google-to look into the matter."). But see Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *11 (D. OkIa. May 27, 2003) ("Google and Page's statements as to the purported objectivity of the PageRank system cannot transform a subjective representation into an objectively verifiable fact.").
105. See Sandeep Pandey et al., Shuffling a Stacked Deck: The Case for Partially Randomized Ranking of Search Engine Results, PROC OF SLST INT'L CONF. ON VERY LARGE DATABASES (VLDB) (2005), available at http://oak.cs.ucla.edu/ ~cho/papers/cho-shuffle.pdf.
106. See SUNSTELN, supra note 61, at 182-89 (arguing that "must carry" rules could be an effective means of diversifying individual experiences); Susan L. Gerhart: Do Web Search Engines Suppress Controversy?, FIRST MONDAY, Jan. 2004, http://firstmonday.org/issues/issue9_ 1/gerhart/index.html (stating that a normal surfer would be "pulled" toward dominant sites instead of more diverse ones).
107. See Eric Goldman, A Coasean Analysis of Marketing, 2006 Wis. L. REV. 1151.
108. In 2006, forty-six percent of all requests for pages from this author's web site came from the Yahoo I robot.
109. See generally danah boyd, Facebook's "Privacy Trainwreck": Exposure, Invasion, and Drama, Sept. 8, 2006, http://www.danah.org/papers/FacebookAndPrivacy.html (arguing that individuals may be more comfortable revealing personal information when they do not expect it to be easily searchable); see also infra Part II.B.2 (discussing unfair-competition reasons why providers may not like searchability).
110. In the so-called "Slashdot effect," being recommended by a popular web site produces a sudden and huge influx of traffic. Not only does the linked site face a potentially huge bandwidth bill, but it also runs the risk of seeing its servers crash under the load, meaning that it reaches none of the users it is trying to. For more on the Slashdot effect, see generally Jason Kottke, Digg vs. Slashdot (or, Traffic vs. Influence), KOTTKE.ORG, Jan. 12, 2006, http://www.kottke.org/06/01/digg- vs-slashdot.
111. See Danny Sullivan, Google's Belgium Fight: Show Me the Money, Not the Opt-Out, Say Publishers, SEARCH ENGINE WATCH (Sept. 20, 2006), http://blog.searchenginewatch. com/blog/060920-152314 (analyzing the motivations of publishers suing Google to prevent indexing).
112. See generally Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004); Oyster Software, Inc. v. Forms Processing, Inc., No. C-00-0724, 2001 WL 1736382 (N.D. Cal. Dec. 6, 2001); eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000).
113. Intel Corp. v. Hamidi, 71 P.3d 296, 308-09 (Cal. 2003).
114. See also Ticketmaster Corp. v. Tickets.com, Inc., No. 99-7654, 2003 WL 21406289, at *3 (C.D. Cal. Mar. 7, 2003) (requiring a showing of actual harm "pending appellate guidance").
115. See generally Orin Kerr, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 N.Y.U. L. REV. 1596 (2003).
116. See Lockheed Martin Corp. v. Speed, No. 6:05.cv-1580-Orl-31KRS, 2006 U.S. Dist. LEXIS 53108, at *18-19 (M.D. FIa. Aug. 1, 2006).
117. 18 U.S.C. §1030(g) (2000).
118. See EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 585 (1st Cir, 2001); Sw. Airlines Co. v. Farechase, Inc., 318 F. Supp. 2d 435, 438-41 (N.D. Tex. 2004).
119. SeeRegister.com, Inc. v. Verio, Inc., 356 F.3d 393, 393 (2d Cir. 2004).
120. In one remarkable case, a court held that a plaintiffs allegations of a binding browsewrap contract could survive a motion to dismiss, even when the contract's terms were not displayed in a manner that would signal to a spider's creator that the provider was attempting to form a contract. See Internet Archive v. Shell, No. 06-cv-01726-LTB-CBS, 2007 U.S. Dist. LEXIS 10239, at *18-19 (D. Colo. Feb. 13, 2007).
121. Specht v. Netscape Comm. Corp., 306 F.3d 17, 35 (2d Cir. 2002).
122. See Patricia Bellia, Defending Cyberproperty, 79 N.Y.U. L. REV. 2164, 2250-51 (2004) (arguing that this result is, for the most part, efficient and just).
123. See Eric J. Feigin, Architectures of Consent: Internet Protocols and Their Legal Implications, 56 STAN. L. REV. 901, 916-17 (2004) (arguing that Internet norms of access and restriction embedded in technical protocols are entitled to legal respect),
124. See Computer Fraud and Abuse Act, 18 U.S.C. § 1030(c)(2)(B)(ii) (2000); United States v. Ancheta, No. CR 05-1060 (CD. Cal. Feb. 2005) (indictment), available at http://ill.fincllaw.com/news. findlaw.com/hdocs/docs/cyberlaw/usanchetaind.pdf.
125. See U.S. SENTENCING GUIDELINES MANUAI., § 1B1.3(a) (1) (B) (2006) (stating that the base offense level for jointly undertaken activity is based on "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity").
126. Sch. of Visual Arts v. Kuprewicz, 771 N.Y.S.2d 804, 808 (N.Y. Sup. Ct. 2003) (holding that one who subscribed another to high-volume e-mail lists could be liable in trespass to chattels).
127. See RESTATEMENT (SECOND) OF TORIS S 217 cmt. e (1965) ("[A] trespass may be committed by causing a third person through duress or fraud to intermeddle with another's chattel." (emphasis added)).
128. On the difficulties involved in assessing intent and effects, compare Universal Tube Sc Rollform Equip. Corp. v. YouTube, Inc., No. 3:06CV02628, 2007 U.S. Dist. LEXIS 40395, at * 19-20 (N.D. Ohio June 4, 2007) (holding that choosing the "youtube.com" domain name does not involve "duress or fraud" in causing users to visit "utube.com"), with Dave Plonka, Flawed Routers Flood University of Wisconsin Internet Time Server (Aug. 21, 2003), http://www.cs.wisc.edu/ ~plonka/netgear-sntp/ (discussing a company that shipped thousands of home networking devices that accessed a university server for its intended purpose but in far greater numbers than appropriate).
129. See generally Search Engine Marketing Professional Organization ("SEMPO"), About SEMPO, http://www.sempo.org/about.
130. Evaluating such charges is difficult, given the secrecy surrounding search ranking algorithms. Independent search analyst Danny Sullivan argues plausibly that the churn in rankings is a side effect of anti-SEO efforts, rather than a deliberate strategy. See Danny Sullivan, What Happened to My Site on Google?, SEARCH ENGINE WATCH, Dec. 7, 2003, http://searchenginewatch.com/showPage.html?page=3286101 ("[T]here are far easier ways that Google could boost ad revenue uptake without doing sneaky, behind-the-scene actions . . . .").
131. The difference between the unfair-competition concerns discussed in this Section, Part II.B.2, and the unwanted-access concerns discussed above, supra Part II.B.l, is that unfair competition deals with a loss of human attention from users, while unwanted access has to do with technical burdens. The difference between unfair-competition concerns and the placement concerns discussed below, infra Part II.B.3, is that the unfair-competition concerns are about competition from search engines, while the placement concerns are about competition with other providers. In the former, the search engine itself steals users; in the latter, it shows undue favoritism among providers.
132. See Complaint at 2, Authors' Guild v. Google, Inc., No. 05-CV-8136 (S.D.N.Y. Sept. 20, 2005), available at http://pub.bna.com/eclr/ 05cv8I36comp.pdf (calling indexing "massive copyright infringement").
133. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003) (finding fair use). But seeUMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349, 352-53 (S.D.N.Y. 2000) (finding no fair use). In these cases, the line between providers and third parties is at its least distinct. See, e.g., Sony Computer Entm't, Inc. v. Connectix Corp, 203 F.3d 596, 608 (9th Cir. 2002) (finding fair use in initial copying for purposes of reverse engineering),
134. See Fair Use: Its Effects on Consumers and Industry: Hearing Before the H. Subcomm. on Commerce, Trade, and Consumer nvtection of the H. Comm. on Energy and Commerce, 109th Cong. 66 (2005) (testimony of Paul Aiken, Executive Director, Authors Guild) ("Since there's no license needed, in Google's view, Google doesn't have to give rightsholders contractual assurances of the security of their database.").
135. .SVf 17 U.S.C. §106(1), (3) (2000) (providing certain exclusive rights to copyright owners, including reproduction and distribution).
136. Cf. Twentieth Century Fox Film Corp. v. iCraveTV, No. 00-121, 2000 U.S. Dist. LEXIS 1013, at *2 (W.D. Pa. Jan. 28, 2000) (granting an injunction against Internet sites framing TV stations' live feeds with advertisements and rebroadcasting them on the Internet).
137. See Field v. Google, Inc., 412 F. Supp. 2d 1106, 1122-23 (D. Nev. 2006); Internet Archive, Removing Documents from the Wayback Machine, http://www.archive.org/about/exclude.php. But see Rebecca Bolin, Locking Down the Library, 29 HASTINGS COMM, & ENT. L.J. 1, 9-19 (2006) (arguing that copyright-related removal from online archives threatens preservation of human memory). Providers and search engines have both been developing technical measures to improve the precision of signals in this area.
138. See Jeffrey Goldfarb, Publishers Aim for Some Control of Search Results, INT'L BUS. TIMES, Sept. 22, 2006, http://ibtimes.com/articles/20060922/global-publishers-google-search-engines- copyright.htm (detailing an attempt by publishers to develop an automated system to grant content-use permission); The Web Robots Pages, The Web Robots FAQ, http://www.robotstxt.org/wc/faq.html.
139. But see Niva Elkin-Koren, What Contracts Cannot Do: The Limits of Private Ordering in Facilitating a Creative Commons, 74 FORDHAM L. REV. 375, 407-17 (2005) (arguing that increased precision of permissions increases the perception that permission is required for any reuse).
140. See 15 U.S.C. § 1125(a)(1) § (a)(1)(A) (2000) (makingactionable a "false designation of origin ... likely to cause confusion").
141. See generally Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) (holding that authorship is not "origin" for purposes of Section 1125(a)). But see F. Gregory Lastowka, The Trademark Function of Authorship, 85 B.U. L. REV. 1171, 1172 (2005) ("[T]he Dastar approach is misguided.").
142. See Kelly v. Arriba Soft Corp., 336 F.3d 811, 822 (9th Cir. 2003).
143. See Perfect 10 v. Amazon.com, 487 F.3d 701 (9th Cir. 2007) (holding thumbnailing likely to be a fair use as against a third-party copyright holder).
144. See, e.g., Nick Taylor, . . . But Not at Writers'Expense, WASH, POST, Oct. 21, 2005, at A18 ("The alphabet ought to be free, most certainly, but the people who painstakingly arrange it into books deserve to be paid for their work.").
145. But see Emily Anne Proskine, Note, Google's Technicolor Dreamcoat: A Copyright Analysis of the Google Book Search Library Project, 21 BERKELEY TECH. L.J. 213, 231-32 (2006) ("None of copyright's exclusive rights suggest that publishers or authors should possess a monopoly over the indexing and searching of their works.").
146. But see Rochelle Dreyfus, Expressive Genericity: Trademarks as Language in the Pepsi Generation, 65 NOTRE DAME L. REV. 397, 405 (1990) ("Furdhermore, fallacies in the fundamental assumptions made by courts that have approved this 'if value, then right' theory mean that the right lacks a coherent limit.").
147. See, e.g., Complaint at 136, Wash. Post Co. v. TotalNews, Inc., No. 97 Civ. 1190 (S.D.N.Y. Feb. 20, 1997), available at http://legal.web.aol.com/decisions/dlip/washcomp.html ("Yet an advertisement on one of Plaintiffs' sites, when seen through the totalnews.com window, is reduced in size, may even be totally obscured by the totalnews frame, and is forced to compete for the user's attention with the visual clutter of the totalnews.com frame, including other advertising - possibly including advertising for directly competitive products.").
148. See Kelly v. Arriba Soft Corp., 280 F.3d 934, 944-47 (9th Cir. 2002), withdrawn by, 336 F.3d 811 (9th Cir, 2003) (finding that deep linking and framing infringe on the exclusive public-display right).
149. See Digital Equip. Corp. v. AltaVista Tech., 960 F. Supp. 456, 478-79 (D. Mass. 1997) (enjoining the defendant from linking to the plaintiff and creating a false impression of affiliation): Knight-McConnell v. Cummins, No. 03 Civ. 5035 (NRB), 2004 U.S. Dist. LEXIS 14746, at *7 (S.D.N.Y. July 29, 2004) ("The mere appearance on a website of a hyperlink to another site will not lead a web-user to conclude that the owner of the site he is visiting is associated with the owner of the linked site.").
150. See Copiepresse v. Google, Inc., Tribunal de Premiere Instances de Bruxelles [Court of First Instance] Brussels, 13 février 2007, J.B.C. 7964 (Belg.) (prohibiting deep linking), available at http://www.copiepresse.be/13-02-07-jugement-en.pdf; Press Release, Newsbooster.com, Newsbooster Keeps on Fighting (July 12, 2002), available at http://www.chillingeffects.org/news.cgi?NewsID=199 (discussing Danish Newspaper Publishers' Association v. Newsbooster.com (2002) (Denmark), which prohibited Newsbooster.com's deep linking). But see Zoekallehuizen.nl/ NVM, Rechtbank Arnhem [Court Arnhem], 16 maart 2006, LJN AV5236 (Neth.) (allowing deep linking), available at http://zoeken.rechtspraak.nl/ resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn= AV5236& u_ljn=AV5236. For a discussion of international cases relating to deep linking, see Linking Cases-Deep Links/Search Engines, http://www.linksandlaw.com/ linkingcases-deeplinks3.htm (summarizing and linking to Home v. Ofir (2006) (Denmark) (allowing deep linking), Zoekallehuizen.nl v. NVM (2006) (Neth.) (same), and Bixee.com v. Nahuri.com (2006) (Ind.) (prohibiting deep linking)).
151. See Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 364 (1991) (holding that a phone book was not original enough to be protected by copyright) ; Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390, at *2, *4 (C.D. Cal. March 27, 2000) (applying Feist).
152. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 454-55 (1984) (holding that a VCR owner's taping of television shows is fair use). See generally Jessica Litman, Lawful Personal Use, 85 TEX. L. REV. 1871 (2007) (discussing personal uses of copyrighted material, such as private home copying).
153. See, e.g., Marvel Enters, v. NCSoft Corp., No CV 04-9253-RGK (PLAx), 2005 U.S. Dist. LEXIS 8448, at *11-17 (CD. Cal. March 9, 2005) (considering copyright and trademark implications of actions by users that would have been lawful private uses offline); Paramount v. ReplayTV, 298 F. Supp. 2d 921, 923 (C.D. Cal. 2004) (objecting to a feature of a personal video recorder allowing consumers to skip commercials automatically).
154. See Internet Corporation for Assigned Names and Numbers, Uniform Domain Name Dispute Resolution Policy ("UDRP") (1999), http://www.icann.org/udrp/udrp-policy24oct99.htm; jee also Anti-Cybersquatting Consumer Protection Act ("ACPA"), 15 U.S.C. § 1125(d) (2000); id. § 1117. See generally Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005).
155. See generally, e.g., People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4di Cir. 2001). But see Lamparello, 420 F.3d at 316-17 (distinguishing Doughney).
156. Compare Edina Realty, Inc. v. TheMLSonline.com, No. Civ. 04-4371, 2006 WL 737064, at *7 (D. Minn. Mar. 20, 2006) (yes), and Buying for the Home, LLC v. Humble Abode, LLC, 459 F. Supp. 2d 310, 332 (D.N.J. 2006) (yes), and J.G. Wentworth, S.S.C. v. Setdement Funding LLC, No. 064597, 2007 U.S. Dist. LEXIS 288, at * 8 (E.D. Pa. Jan, 4, 2007) (yes), with Site Pro-1 v. Better Metal, LLC, No. 06-6508, 2007 U.S. Dist. LEXIS 34107, at *5-6 (E.D.N.Y. May 9, 2007) (no), and Merck Sc Co., Inc. v. Mediplan Health Consulting, Inc., 425 F. Supp. 2d 402, 415-16 (S.D.N.Y. 2006) (no), and Rescuecom Corp. v. Google, Inc., 456 F. Supp. 2d 393, 403-04 (N.D.N.Y. 2006) (no).
157. See Eric Goldman, Deregulating Relevancy in Internet Trademark Law, 54 EMORY L.J. 507, 565 (2005); see also Playboy Enters., Inc. v. Netscape Commc'ns Corp., 354 F.3d 1020, 1034-36 (9th Cir. 2004) (Berzon.J., concurring).
158. Brookfield Commc'ns, Inc., v. W. Coast Entm't Corp., 174 F.Sd 1036, 1066 (9th Cir. 1999).
159. Playboy, 354 F.Sd at 1024-29.
160. Id. at 1025-26.
161. 1-800-Contacts, Inc. v. WlienU.com, Inc., 414 F.Sd 400, 410-12 (2d Cir. 2005); Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734, 772 (E.D. Mich. 2003); U-Haul Int'l, Inc. v. WhenU.com, Inc., 279 F. Supp. 2d 723, 728-29 (E.D. Va. 2003). These cases also raised copyright theories tied to the allegedly altered display of the web pages,
162. Compare Google, AdWorlds Trademark Complaint Procedure, http://www. googIe.co.uk/tm_complaint_adwords.html (forbidding only the use of the trademark in ad text), with Yahoo! Search Marketing, Trademarks, http://searchmarketing.yahoo.com/ legal/trademarks,php (forbidding bidding on trademarked terms except under stated conditions).
163. See generally Google, Inc. v. Am. Blind & Wallpaper Factory, Inc., No. C 03-5340 JF CRSJ, 2007 U.S. Dist. LEXIS 32450 (N.D. CaI. Apr. 18, 2007) (allowing a theory of infringement for use in keywords to proceed on motion for summary judgment); Gov't Employees Ins. Co. v. Google, Inc., No. 01:04cv507, 2005 U.S. Dist, LEXIS 18642 (E.D. Va. Aug. 8, 2005) (finding for the search engine in a bench trial); Google, Inc. v, Am. Blind & Wallpaper Factory, Inc., No. 03-05340, 2005 U.S. Dist. LEXIS 6228 (N.D. Cal. Mar. 30, 2005) (allowing a theory of infringement for use in keywords to proceed on motion to dismiss); Gov't Employees Ins. Co. v. Google, Inc., 330 F. Supp. 2d 700 (E.D. Va. 2004) (dismissing a theory of trademark infringement for use in advertising keywords but allowing a theory of infringement for use in advertising text to proceed). See also 800-JR-Cigar, Inc. v. GoTo.com, 437 F. Supp. 2d 273, 297 (D.N.J. 2006) (allowing a keyword-use theory to proceed); Elinor Mills, Google Loses French Trademark Lawsuit, CNET NEWS, June 28, 2006, http://www.news.com/2100-1030_3-6089307.html (reporting on similar French decisions in favor of trademark holders).
164. Trademark Protection Act, §70-3a-402(1)(c), S.B. 236, 2007 Gen. Sess. (Utah 2007), available at http://le.utah.gov/~2007/bills/sbillamd/ sb0236.htm.
165. See Eric Goldman, Utah Bans Keyword Advertising, TECH. Sc MKTG. L. BLOG (Apr. 3, 2007), littp://blog.ericgoldman.org/archives/2007/04/utah_bans_keywo.htm (stating that the law raises Dormant Commerce Clause and First Amendment, concerns).
166. See, e.g., Pasquale, supra note 3, at 136 (proposing that trademark holders be allowed to place an asterisk next to unsanctioned search results); James A, Rossi, Protection for Trademark Owners: The Ultimate System of Regulating Search Engine Results, 42 SANTA CLARA L. REV. 295, 347-54 (proposing that search engines should always offer the option of returning results that the holder of the trademarked search term selects).
167. See generally KinderStart.com, LLC v. Google, Inc., No. C 06-2057 JF CRSJ, 2007 U.S. Dist. LEXIS 22637, at *3 (N.D. Cal. Mar. 16, 2007); Langdon v. Google, Inc., 474 F. Supp. 2d 622, 626 (D. Del. 2006); Roberts v. Google, Inc., No. 1-06-CV-063047 (Cal. Sup. Ct. May 12, 2006) (voluntary dismissal); Search King, Inc., v. Google Tech., Inc., No. CIV-02-1457-M, 2003
168. S. Dist, LEXIS 27193, at *3 (W.D. Okla. May 27, 2003); Complaint, Datner v. Yahoo! Inc., No. BC355217 (CaI. Sup. Ct. July 11, 2006); Complaint, CLRB Hanson Industries, LLC v. Google, Inc., No. 1-05-CV-046409 (CaI. Sup. Ct. Aug. 3, 2005).
169. Search King, Inc., 2003 U.S. Dist. LEXIS 27193, at *8-9.
170. See Dahlia Lithwick, Google-Opoly: The Game No One but Google Can Play, SLATE, Jan. 29, 2003, http://www.slate.com/id/2077875/ ("SearchKing in effect has its clients collude to trick Google into boosting everyone's ratings,").
171. Cf. David Kesmodel, Blogger Faces Lawsuit Over Comments Posted by Readers, WALL ST. J. ONUNE, Aug. 31, 2005, http://online.wsj.com/pubic/article/SB112541909221726743-
172. See supra Part II.B.2.
173. See Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002), withdrawn by 336 F.3d 811, 822 (9th Cir. 2003) (finding that reproduction of thumbnail images is a fair use).
174. See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).
175. See, e.g., MSN.com, Site Owner Help: Control Which of Your Pages are Indexed, http://search.msn.com.sg/docs/siteowner,aspx? t= SEARCH_WEBMASTER_REF_RestrictAccess ToSite.htm. ("Prevent MSNBot from caching a page"). But see 17 U.S.C. § 512(b) (2000) (providing a safe harbor for "system caching"); Parker v. Google, Inc., 422 F. Supp. 2d 492 (E.D. Pa. 2006), aff'd, No. 06-3074, 2007 WI. 1989660, at * 3 (3d Cir. July 10, 2007) (per curiam) (holding that archiving is not "volitional" and, therefore, is not copyright infringement).
176. MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 935 (2005). Sony held that one who manufactures and distributes a technology will not be liable for infringements committed by its users as long as the technology has "substantial noninfringing uses." Sony Corp, v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984). Grokster added to that test a requirement that the maker must not have acted with the intent of inducing its users to infringe. Grokster, 545 U.S. at 935.
177. See Grokster, 545 U.S. at 921 (describing Grokster's search function).
178. Compare id. at 919 ("[0]ne who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable" (emphasis added)), with MGM Studios, Inc. v. Grokster, Ltd., 454 F. Supp. 2d 966, 985 (CD. Cal. 2006) ("Plaintiffs need prove only that StreamCast distributed the product with the intent to encourage infringement.").
179. Digital Millennium Copyright Act, 17 U.S.C. §512 (2000).
180. Some providers, both in the ISP and search engine contexts, have used such notices to enforce non-copyright-related desires to suppress the material. See Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1198-1204 (N.D. Cal. 2004) (finding "material misrepresentation" of infringement where posted "embarrassing" content was "not subject to copyright protection").
181. Joshua Urist, Who's Feeling Lucky? Skewed Incentives, Lack of Transparency, and Manipulation of Google Search Results Under the DMCA, 1 BROOK, J. CORP. FIN. &. COMM. L. 209, 219 (2006) (arguing that such Section 512(d) takedown requests should be publicly archived). See Google, Digital Millennium Copyright Act, http://www.google.com/dmca.html ("Please note that in addition to being forwarded to the person who provided e allegedly infringing content, a copy of this legal notice may be sent to a third-party partner for publication and annotation.").
182. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109-15, 1116-17 (9th Cir. 2007) (discussing Section 512(d) and Section 512(i)).
183. The question of knowledge is relevant both in the standard for contributory infringement and directly under Section 512; the ability to control infringers is relevant in vicarious infringement and directly under Section 512.
184. See A&M Records v. Napster, Inc., 284 F.3d 1091, 1098-99 (9th Cir. 2002).
185. See Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 711-12, 729-32 (9th Cir. 2007) (noting that Google placed affiliate advertisements on sites allegedly hosting infringing images).
186. See, e.g., Hard Rock Cafe Licensing Corp. v. Concession Serv., Inc., 955 F.2d 1143, 1148-50 (7th Cir. 1992) (discussing contributory and vicarious trademark liability for the operator of a flea market where counterfeit goods are sold).
187. See eBay, How eBay Protects Intellectual Property (VeRO), http://pages.ebay.com/help/tp/programs-vero-ov.html [hereinafter VeRO]. But see Complaint, Tiffany, Inc. v. eBay, Inc., No. 04 CV 4607 (S.D.N.Y. June 18, 2004), available at http://cyberlaw.stanford.edu/attachments/ Tiffany%20eBay%20complaint.pdf (claiming that eBay is secondarily liable for sales of trademarked goods). eBay is potentially more liable than most stand-alone search engines under a vicarious-liability theory, since it has the ability to disable any auction on its site. See VeRO, supra. Contributory trademark liability might be more broadly generalizeable beyond eBay.
188. 47 U.S.C. § 230(c)(1)(2000).
189. Id. at § 230(c)(2)(A).
190. See Chicago Lawyers' Comm. for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 461 F. Supp. 2d 681, 698-99 (N.D. Ill. 2006) (applying Section 230 to preempt a claim under the Fair Housing Act against an online classified-ads site and search engine for the discriminatory housing ads posted by its users). For a remarkable example of the broadness of this immunity, consider Sturm v. eBay, Inc., No. 1-06-CV-057926 (Cal. Super. Ct. July 27, 2006), in which eBay was not required to remove defamatory feedback about a user, even when the user and the defamer had entered into a settlement stipulating that the feedback was defamatory and both had written eBay asking that it be removed. See Elise Ackerman, EBay Lawsuit Reveals Foibles of Site Feedback, SAN JOSE MERCURY NEWS, Aug. 9, 2006, at Al, available at http://www.mercurynews.com/mld/mercurynews/ news/local/15228670.htm. Other countries have less categorical rules about intermediary immunity. See, e.g., Eiseres/Google, Rechtbank Amsterdam [Court Amsterdam], 30 April 2007, LJN BA3941 (Neth.), available at http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype= ljn&ljn=BA3941&u_ljn=BA3941 (holding that Google is not obliged to prevent unlawful information from entering its search results).
191. Discussion of this case is available at Joris van Hoboken, The Duty of Care of Search Engines (May 15, 2007), http://www.jorisvanhoboken.nl/?p=32.
192. See Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 489 F.3d 921, 926 (9th Cir. 2007) (holding a roommate search service not immune under Section 230 for information supplied by users in drop-down menus on the service's site). See generally Ken S. Myers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 HARV. J.L. & TECH. 163, 174-78 (2006) (discussing Section 230 cases and the extent to which a service can encourage users to provide defamatory content without losing its immunity).
193. See, e.g., Chris Sherman, Puzzling Out Google's Blogger Acquisition, SEARCH ENGINE WATCH, Feb. 18, 2003, http://searchenginewatch.com/showPage.html?page=2161891 (discussing Google's purchase of Pyra Labs, the creator of Blogger); Press Release, Google To Acquire YouTube for $1.65 Billion in Stock, (Oct. 9, 2006), http://www.google. com/press/pressrel/google_youtube.html (announcing that Google will acquire YouTube);
194. Michael Arlington, Windows Live Spaces Launches, Replaces MSN Spaces, TECHCRUNCH (Aug. 1, 2006), http://www.techcrunch.com/2006/ 08/01/windows-live-spaces-launches-replaces-msn-spaces/.
195. See Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *6 (W.D. OkIa. May 27, 2003).
196. Yahoo's directory describes each listed site in a sentence. Yahoo! Search Directory, http://dir.yahoo.com/. The Open Directory Project does the same, with the taxonomy and descriptions being supplied by volunteers. Open Directory Project, http://www.dmoz.org/.
197. Cf. Benjamin Cohen & Helen Nugent, Cole Tackles Google over Gay Link, TIMES (LONDON), Mar. 7, 2006, at 31, available at http://www.timesonline.co.uk/tol/news/tech_and_web/ article738224.ece (explaining that Google search on "ashley cole" returned "See results for: ashley cole gay" and describing Google spokesperson's explanation that alternative search suggestions are determined by computer algorithm).
198. For a domain-specific example, consider Don't Date Him Girl, http://dontdatehimgirl.com/, which allows users to search for personal reports posted by other users about cheating men - by name. At least one alleged cheater has decided to take his chances with Section 230 in a lawsuit against the site. See Carl Jones, Scorned Attorney Sues Kiss-and-Tell Web Site, DAILY BUS. REV. (Florida), July 5, 2006, available at http://www.law.com/jsp/article.jsp?id=1151658319991.
199. See Daniel Dasey, A Quick Self-Google Once a Day to Guard Your Reputation, SUN-HERALD (Australia), May 23, 2004, available at http://www.smh.com.au/articles/2004/05/22/1085176043551. html.
200. See Pasquale, supra note 3, at 135.
201. See generally R. Polk Wagner, On Software Regulation, 78 S. CAL. L. REV. 457 (2005) (arguing that denying online actors legal recourse will encourage them to employ technical self-help).
202. See, e.g., Edward A. Cavazos, Note, Computer Bulletin Board Systems and the Right of Reply: Redefining Defamation Liability for a New Technology, 12 REV. LITIG. 231, 243-47 (1992).
203. See Cho & Roy, supra note 69 (arguing that web ranking mechanisms favor already popular sites).
204. See Mark Glaser, Companies Subvert Search Results to Squelch Criticism, ONLINE JOURNALISM REV., June 1, 2005, http://www.ojr.org/ojr/stories/050601glaser/.
205. See, e.g., Matt Cutts et al., A Quick Word About Googlebombs, OFFICIAL GOOGLE WEBMASTER CENTRAL BLOG (Jan. 25, 2007), http://googlewebmastercentral. blogspot.com/2007/01/quick-word-about-googlebombs.html (describing Google's algorithmic changes to end the effect of Googlebombs on its rankings).
206. For further discussion of Googlebombing, including these two examples, see infra Part II.D.1.
207. See Randy Cohen, Is Googling O.K.?, N.Y. TIMES, Dec. 15, 2002, (Magazine), at 50 (discussing the ethics of Googling potential dates). Cf. Kevin Poulsen, MySpace Predator Caught by Code, WIRED NEWS, Oct. 16, 2006, http://www.wired.com/science/ discoveries/news/2006/10/71948 (discussing the use of publicly available datasets to locate registered sex offenders with Myspace profiles).
208. Elinor Mills, Google Balances Privacy, Reach, CNET NEWS, Aug. 3, 2005, http://news.com.com/2102-1032_3-5787483.html.
209. Saul Hansell, Google's Chief Is Googled, to the Company's Displeasure, N.Y. TIMES, Aug. 8, 2005, at C4. The ban was dropped sub silentio within a few months.
210. See Elinor Mills, Google to Yahoo: Ours Is Bigger, CNET NEWS, Sept. 28, 2005, http://news.com.com/2102-1038_3-5883345.html (quoting from a phone interview with Schmidt).
211. To be analytically complete, we should consider provider privacy. In practice, however, provider privacy is not much of a problem. Providers who do not wish to be found by searching usually opt off the public Internet entirely. Accidental leaks of information found by search engines raise issues similar to those raised by third-party privacy concerns. That said, a provider that accidentally releases information harmful to itself is almost certainly the least-cost avoider as compared with a search engine.
212. Self-help is not entirely out of the question. Douglas Coupland's novel JPod includes a character who creates a juicy but false web site about herself (stating that she lost hundreds of pounds on the Subway diet but has cheated by sneaking junk food snacks), partly for amusement, but partly to throw searchers off the track of true information about her. DOUGLAS COUPLAND, JPOD 118-21, 166 (2006).
213. See Lior Strahilevitz, Friendster and Symmetrical Privacy, UNIV. OF CHI. L. SCH. FACULTY BLOG (Oct, 6, 2005), http://uchicagolaw.typepad.com/faculty/2005/10/friendster_and_. html.
214. See, e.g., UNIFORM TRADE SECRETS ACT § 1(b) (2) (b) (ii) (defining "misappropriation" to include disclosure of information by one who acquired it "under circumstances giving rise to a duty to maintain its secrecy or limit its use"); McCormick v. England, 494 S.E.2d 431, 437 (S.C. Ct. App. 1997) (holding that "an actionable tort lies for a physician's breach of the duty to maintain the confidences of his or her patient").
215. Some users seek out negative information on others, it's true, but it's still hard to see those users as guilty of anything more than having an uncharitable attitude toward their fellow man. If the information is true, nothing wrong has taken place. If the information is false and the users know it's false, it may no longer be genuinely defamatory; all that remains is a kind of residual tarnishment. Additionally, if the information is false and the users think it's true, the deceit is the provider's fault. Only when a user republishes the libel - and thus becomes a provider herself - does her culpability ripen into something worthy of the name.
216. See, e.g., Ryan Singel, Sex Lube Maker's 250K Customer List Slides onto Net, THREAT LEVEL (Apr. 24, 2007), http://blog.wired.com/27bstroke6/2007/04/sex_lube_makers.html (describing how the combination of poor security at Astroglide's web site and searchability means that Google searches on names of customers now return the name of the product they ordered).
217. Only rarely do nongovernmental actors even try to force search censorship, since they rarely have legal standing to do so. The most notable American exception is Complaint, Toback v. Google, Inc., No. 06-007246 (N.Y. Sup. Ct. May 4, 2006), available at http://casedocs.justia.com/new-york/ nyedce/2:2006cv02692/257132/1/1.pdf, a private suit in nuisance and intentional infliction of emotional distress that accused Google of allowing traffic in child pornography. The causes of action were obviously preempted by Section 230, and the plaintiff, a New York state legislator, dropped it within two months, after Google "offered to sit down and discuss the issues."
218. See CenSEARCHip, About CenSEARCHip, http://homer.informatics. indiana.edu/censearchip/about.html (describing a service that compares search results in China, France, Germany, and the United States); see also JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET? 149 (2006) ("[W]hat we once called a global network is becoming a collection of nation-state networks . . .,").
219. See Cen. for Democracy and Tech, v. Pappert, 337 F. Supp. 2d 606, 663 (E.D, Pa. 2004) (holding unconstitutional a Pennsylvania anti-pornography ISP censorship law).
220. See Richard Clayton et al., Ignoring the Great Firewall of China 1 (2006) (unpublished manuscript), available at http://www.cl.cam.ac.uk/ ~rnc1/ignoring.pdf (describing technologies used to prevent Chinese access to disapproved Internet sites and techniques for evading this censorship).
221. See Yahoo! Inc. v. La Ligue Contre Le Racisme et L'Antisemitisme, 433 F.3d 1199, 1202 (9th Cir. 2006) (providing an English translation of the French order).
222. Id. at 1215-18. The en banc court split: some judges would have allowed the suit to go forward, some would have dismissed for lack of personal jurisdiction, and some would have dismissed for lack of ripeness. A majority of the en banc panel voted for dismissal, but neither reason for dismissal commanded a majority on its own.
223. See GOLDSMITH & WU, supra note 181, at 159-60.
224. See Thompson, supra note 63 (describing the Chinese government's Internet censorship laws and Google's operations in the country).
225. This self-censorship system is not unique to China; search providers in Germany use a similar system to suppress hate speech. See Subcode of Conduct for Search Engine Providers of the Association of Voluntary Self-Regulating Multimedia Service Providers, http://www.fsm.de/en/SubCoC_Search_Engines.
226. See, e.g., Oxblood Ruffin, Google, China, and Genocide, CULT OF THE DEAD COW COMMUNICATIONS, Apr. 22, 2007, http://www.cultdeadcow.com/cDc_files/cDc-0409.php (describing Google's Chinese-search censorship as participation in "cultural genocide").
227. H.R. 4780, 109th Cong. §§ 202(1), 203 (2d Sess. 2006).
228. See Anne Broache, Web Giants Ask for Feds' Help on Censorship, CNET NEWS, Jan. 31, 2007, http://news.com.com/2102- 1028_3-6154930.html.
229. See Complaint of Tort Damage, Wang Xiaoning v. Yahoo! Inc., No. 07-2151 (N.D. Cal. Apr. 19, 2007).
230. Gonzales v. Google, Inc., 234 F.R.D. 674, 680 (N.D. Cal. 2006) ("Google primarily argues that the information sought by subpoena is not reasonably calculated to lead to evidence admissible in the underlying litigation and that the production of information is unduly burdensome.").
231. Broache, supra note 48.
232. See United States v. Schuster, 467 F.3d 614, 617 (7th Cir. 2006) (upholding factual findings based in part on Google searches by the defendant); K.C. Jones, Murder Suspect's Google Searches Spotlighted in Trial, CHANNEL WEB NETWORK, Nov. 11, 2005, http://www.crn.com/it-channel/173602157 (discussing a prosecutor's claim that a murder defendant used Google to learn the "depth and topography of a lake where the body of his wife . . . was found").
233. Press Release, President George W. Bush, President Bush Discusses NSA Surveillance Program (May 11, 2006), available at http://www.whitehouse. gov/news/releases/2006/05/20060511-1.html.
234. See, e.g., Matt Cutts, Notifying Webmasters of Penalties, GADGETS, GOOGLE, AND SEO (Apr. 26, 2006), http://www.mattcutts.com/blog/notifying-webmasters-of-penalties/ (discussing the tradeoffs involved in notifying providers that their sites are being penalized).
235. See, e.g., Dave Tiberio, Reverse-Engineering Search Engine Ranking Algorithms, WEBPRONEWS.COM, http://www.webpronews. com/node/23170/print (explaining the basics of reverse engineering search engine algorithms).
236. See generally, e.g., Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193 (W.D. Okla. May 27, 2003).
237. See generally Brookfield Commc'ns, Inc., v. W. Coast Entm't Corp., 174 F.3d 1036 (9th Cir. 1999).
238. See Adam Mathes, Filler Friday: Google Bombing, ÜBER.NU, Apr. 6, 2001, http://uber.nu/2001/04/06/.
239. See "Miserable Failure" Links to Bush, BBC NEWS, Dec. 7, 2003, http://news.bbc.co.uk/2/hi/americas/3298443.stm (describing the "Miserable Failure" Googlebomb). Whether the critics of George W. Bush who created this Googlebomb will feel as proud of it when the White House has its next occupant is another matter entirely.
240. See, e.g., Brad Stone, The Hand That Controls the Sock Puppet Could Get Slapped, N.Y. TIMES, July 16, 2007, at Cl, available at http://www.nytimes.com/2007/07/16/technology/16blog.html; see also Glaser, supra note 168; Wikipedia, Sock Puppetry, http://en.wikipedia. org/wiki/Wikipedia:Sock_puppet ("Use of sock puppets is discouraged in most cases.").
241. See generally Clifford Tatum, Deconstructing Google Bombs: A Breach of Symbolic Power or Just a Goofy Prank?, FIRST MONDAY, Oct. 2005, http://www.firstmonday.org/issues/issue10_10/tatum/ index.html (suggesting that attempts at suppression will have little impact).
242. Compare Saul Hansell, Foes of Bush Enlist Google to Make Point, N.Y. TIMES, Dec. 8, 2003, at C8 ("We just reflect the opinion on the Web . . . ."),
243. with Danny Sullivan, Googlebombing Now a "Prank" and Not Web's Opinion, Says Google, SEARCH ENGINE WATCH (Sept. 19, 2005), http://blog.searchenginewatch.com/blog/050919- 095321 (arguing that Google has changed its views about the nature of Googlebombing).
244. See Class Action Complaint and Jury Trial Demand, Crafts by Veronica v. Yahoo!, Inc., No. 2:06-cv-01985 (D.NJ. May 1, 2006); Class Action Complaint and Jury Trial Demand, Draucker Dev. v. Yahoo! Inc., No, CV06-2737 (CD. Cal. May 4, 2006); Final Order and Judgment Approving Settlement, Lane's Gifts and Collectibles, Inc. v. Yahoo! Inc., No. CV-2005-52-1 (Ark. Cir. Ct. July 26, 2006), available at http://blog.ericgoldman.org/archives/ lanegiftsac.pdf; Findings and Preliminary Order Approving Settlement of Class Action and Directing the Issuance of the Notice to the Class, Checkmate Strategic Group, Inc. v. Yahoo! Inc., No. 2:05-CV-04588-CAS-FMO (CD. Cal. June 28, 2006); Advanced Internet Tech., Inc. v. Google, Inc., 2006 WL 889477 (N.D. Cal. stay entered Apr. 5, 2006); Complaint, CLRB Hanson Industries LLC v. Google, Inc., No. 1-05-CV-046409 (Cal. Sup. Ct. Aug. 3, 2005); see also David A, Vise, Clicking to Steal, WASH. POST, Apr. 17, 2005, at F01 (describing the lawsuit by Google against Auctions Expert alleging click fraud).
245. Some have argued that search engines have no incentive to police click fraud because they can charge for illegitimate clicks. See, e.g., Brian Grow & Ben Elgin, Click Fraud: The Dark Side of Online Advertising, BUSINESSWEEK, Oct. 2, 2006, at 46, 51 (quoting Martin Fleischmann, an Internet entrepreneur and victim of click fraud, "'I told Yahoo years ago,' he says, '"If this [fraudulent clicks] was costing you money instead of making you money, you would have stopped this."'"). Not so. The Coasean exchange returns to search engines the necessary incentive, as they will be able to increase their cost-per-click if they reduce fraud rates.
246. But see, e.g., Yahoo! Search Marketing, Click Fraud FAQ, http://searchmarketing.yahoo.com/legal/clickfraud.php ("[E]ven though we are not obligated to, we voluntarily designed the Click Protection System" to identify click fraud (emphasis added)).
247. See generally GOOGLE, INC. CLICK QUALITY TEAM, HOW FICTITIOUS CLICKS OCCUR IN THIRD-PARTY FRAUD AUDIT REPORTS 4 (2006), http://www.google.com/adwords/ReportonThird-Party ClickFraudAuditing.pdf (arguing that third-party click-fraud-auditing firms overestimate click-fraud rates).
248. See ALEXANDER TUZHILIN, THE LANE'S GIFTS v. GOOGLE REPORT, http://googleblog.blogspot.com/pdf/Tuzhilin_Report.pdf (describing Google's reasons for withholding details of click fraud from advertisers). This monitoring problem creates a close connection between search engines' two biggest operational problems: SEO and click fraud.
249. See generally BATTELLE., supra note 1.
250. See Press Release, Interactive Adver. Bureau, The Interactive Industry Commits to the Development of Click Measurement Guidelines (Aug. 2, 2006), available at http://www.iab.net/news/pr_2006_08_02.asp (announcing an industry-wide group to develop a set of Click Measurement Guidelines that would standardize how invalid and fraudulent clicks are defined and counted).
251. See Damien Cave, The Parasite Economy, SALON, Aug. 2, 2001, http://archive.salon.com/tech/feature/2001/08/02/parasite_capital/ index.html (coining the term);
252. Stefan Gorling, An Introduction to the Parasite Economy, in EICAR 2004 CONFERENCE PROCEEDINGS (U.E. Gattiker ed., 2004), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 683081 (generalizing it).
253. See, e.g., Crafts by Veronica v. Yahoo!, Inc. No. 2:06-cv-01985 (D.N.J. May 1, 2006).
254. See, e.g., Complaint for Injunctive and Additional Relief, Washington v. Secure Computer, LLC, No. C-06-0126 (W.D. Wash, filed Jan. 24, 2006); Notice of Verified Petition, New York v. DirectRevenue, LLC (N.Y. Sup. Ct. filed Apr. 4, 2006); Settlement Agreement and Limited Release, Sotelo v. DirectRevenue, LLC, No. 05-C-2562 (N.D. Cal. Mar. 10, 2006).
255. See Ben Edelman, The Spyware-Click-Fraud Connection - and Yahoo's Role Revisited (Apr. 4, 2006), http://www.benedelman.org/news/ 040406-1.html (describing the role of Yahoo!'s affiliate network in placing advertisements in spyware). Edelman is co-counsel for plaintiffs in Crafts by Veronica v. Yahoo!Inc., No. 2:06-cv-01985 (D.N.J. May 1, 2006).
256. See Ben Edelman, Pushing Spyware Through Search (Jan. 26, 2006), http://www.benedelman.org/news/012606-1.html (analyzing the prevalence of spyware-ładen sites in Google results and advertisements for some common searches).
257. On search engines' centrality and connections to web spam, see YI-MIN WANG ET AL., SPAM DOUBLE-FUNNEL: CONNECTING WEB SPAMMERS WITH ADVERTISERS (2007), available at http://www.cs. ucdavis.edu/~lichen/paper/www07.pdf.
258. Currently, according to comScore and Nielsen NetRatings, Google is the market leader with a roughly fifty-percent share; Yahoo! has about twenty-five percent, and MSN another ten percent. AOL and Ask also have significant shares of perhaps five percent each, and the remainder is split among a great many minor search engines. See Press Release, comScore, comScore Releases June U.S. Search Engine Rankings (July 16, 2007), available at http://ir.comscore.com/releasedetail.cfm?ReleaseID=254477; Press Release, Nielsen//NetRatings, Nielsen//NetRatings Announces May U.S. Search Share Rankings (June 20, 2007), http://www.nielsen-netratings.com/pr/pr_070620.pdf.
259. Jonathan Thaw & Susan Decker, Google to Subpoena Yahoo, Microsoft on Book Scanning, BLOOMBERG MARKETS, Oct. 5, 2006, http://www.bloomberg.com/apps/news?pid=20601103&sid=amfuMLMq__H8.
260. See Gonzales v. Google, Inc., 234 F.R.D. 674, 684 (N.D. Cal. 2006) (considering Google's allegation that revealing random URLs and user queries would expose trade secrets).
261. See Robert D. Hof, Mix, Match, and Mutate, BUSINESSWEEK, July 25, 2005, at 72, available at http://www.businessweek.com/magazine/content/05_30/b3944108_mz063.htm (describing "mash-up" applications made by combining multiple programmatic APIs). Such mash-ups would be nearly impossible if search engines and other web companies treated their results as resources to be closely guarded.
262. See, e.g., Cutts et al., supra note 169.
263. See, e.g., Google, Inc. v. Microsoft Corp., 415 F. Supp. 2d 1018, 1020 (N.D. Cal. 2005) (discussing Microsoft's attempt to prevent Kai-Fu Lee, former vice president at Microsoft, from becoming vice president at Google).
264. See Nick Denton, Google: This NDA Never Existed, VALLEYWAG (Jan. 22, 2007), http://valleywag.com/tech/google/this-nda- never-existed-230407.php (reprinting Google's standard nondisclosure agreement).
265. See Robin Sidel et al., At Google, Mum's the Word About Almost Everything, WALL ST. J., Apr. 27, 2007, at B1 (detailing Google's secrecy with both investors and the outside world).
266. U.S. Patent No. 7,058,628. The patent is "owned by Stanford University, but licensed exclusively to Google until 2011." BATTELLE, supra note 1, at 130.
267. See George Mannes, Yahoo! Gets Bigger Stake in Google, THESTREET.COM, Aug. 9, 2004, http://www.thestreet.com/pf/tech/ georgemannes/10177217.html.
268. See generally Hyperphrase Techs., LLC v. Google Inc., No. 06-C-199-5, 2006 U.S. Dist. LEXIS 64918 (W.D. Wis. Sept. 7, 2006); Skyline Software Sys. v. Keyhole, Inc., 421 F. Supp. 2d 371 (D. Mass. 2006), summary judgment granted to defendant Google, Inc., No. 06-10980-DPW, 2007 U.S. Dist. LEXIS 16053 (D. Mass. March 7, 2007); Netjumper Software, L.L.C v. Google, Inc., No. 04-80366-CV, 2005 U.S. Dist. LEXIS 27813 (S.D.N.Y. Nov. 10, 2005); FindWhat.com v. Overture Servs., Inc., No. 02 Civ. 447 (MBM), 2003 U.S. Dist. LEXIS 2450 (S.D.N.Y. Feb. 13, 2003).
269. See Penelope Patsuris, The Making of a $2 Billion. Brand, FORBES.COM, Feb. 21, 2003, http://www.forbes.com/2003/02/21/ cx_pp_0221google.html (describing the ubiquity of the word "google");
270. see also Frank Ahrens, So Google Is No Brand X, but What Is 'Genericide'?, WASH. POST, Aug. 5, 2006, at D01, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/ 08/04/AR2006080401536.html (describing a baseless attempt by Google trademark attorneys to object to a newspaper's statement that "Google" was in common use as a generic verb);
271. Beth Lipton Kriegel, Yahoo Not Amused by Pot Parody Site, CNET NEWS, Jan. 11, 1999, http://news.com.com/2100-1023-219986.html (describing Yahoo!'s action against yahooka.com).
272. See generally Dan Burk, Method and Madness in Copyright Law, 2007 UTAH L. REV. (forthcoming 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id-999433 (discussing the idea-expression dichotomy and the copyrightability of the results of automated processes).
273. Cf Doug Young, Yahoo and Former China Head in Brewing Legal Battle, REUTERS, Aug. 17, 2006, available at http://services.inquirer.net/print/print.php?article_id=15801 (noting that Qihoo sued Yahoo for defamation),
274. with Sumner Lemon, Yahoo China Sues Rival Portal, IDG NEWS SERV., Sept. 29, 2006, available at http://www.infoworld.com/article/06/09/29HNyahoochinasues_l.html?PORTALS (noting that Yahoo sued Qihoo for unfair competition).
275. See Person v. Google, Inc., 456 F. Supp. 2d 488, 491-92 (S.D.N.Y. 2006) (alleging that Google does not allow smaller customers to purchase certain AdWords but dismissing on other grounds); Tushnet, supra note 75 (characterizing KinderStart's allegations of Google antitrust violations as "incomprehensible").
276. Steve Lohr, Google Deal Said to Bring U.S. Scrutiny, N.Y. TIMES, May 29, 2007, at Cl, available at http://www.nytimes.com/ 2007/05/29/technology/29antitrust.html.
277. Ina Fried, Vista Search Seems Fair, Regulators Say, CNET NEWS, May 12, 2006, http://news.com.com/2102-1014_3-6071851.html.
278. See Eric Schmidt, A Note to Google Users on Net Neutrality, http://www.google.com/help/netneutrality_letter.html (asking concerned citizens to voice their support for net neutrality).
279. Arshad Mohammed, Verizon Executive Calls for End to Google's "Free Lunch", WASH. POST, Feb. 7, 2006, at D1.
280. Or, in the engine's case, gain a blanket immunity from suit.
281. See, e.g., Kelly v. Arriba Soft Corp., 336 F.3d 811, 817 (9th Cir. 2003) (raising copyright theories predicated both on initial copying and on framing); Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH(BQPX), 2000 WL 525390, at *2, *4 (CD. Cal. Mar. 27, 2000) (raising copyright and trespass-to-chattels theories).
282. Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 397 (2d Cir. 2004); eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1063 (N.D. Cal. 2000). The most promising unfair-competition theories are not available to plaintiffs who provide factual information not protectable by copyright. See Sw. Airlines Co. v. FareChase, Inc., 318 F. Supp. 2d 435, 440 (N.D. Tex. 2004) (stating that "[f]are, route and scheduling information are all facts and thus not copyrightable"); Ticketmaster Corp., 2000 WL 525390, at *2 (denying a copyright claim).
283. See 17 U.S.C. § 109(a) (2000) (authorizing the owner of a lawful copy the right to resell that copy without the permission of the copyright holder). But see Sharon Billington, Relief from Online Used Book Sales During New Book Launches, 29 COLUM. J.L. & ARTS 497, 497-98 (2006) (arguing against empirical evidence and without considering the effects on libraries and critics that publishers should be allowed to prevent resale of used books within six months of first publication).
284. See Complaint at 2, Authors' Guild v. Google, Inc., No. 05-CV-8136 (S.D.N.Y. Sept. 20, 2005), available at http://pub.bna.com/eclr/ 05cv8136comp.pdf. Cf. Ty, Inc., v. Publ'ns Int'l Ltd., 292 F.3d 512, 515 (7th Cir. 2002) (considering a copyright suit against a collectors' guide to Beanie Babies containing allegedly infringing photographs thereof); Kevin Emerson Collins, Cybertrespass and Trespass to Documents, 54 CLEV. St. L. REV. 41, 62-68 (2006) (discussing cases involving the subsequent use of information obtained through improper access to physical documents).
285. Intel Corp. v. Hamidi, 71 P.3d 296, 305-06 (Cal. 2003).
286. See supra Part II.B.1.
287. See supra notes 93-94, 108 and accompanying text.
288. See, e.g., 47 U.S.C. § 230(e) (2) (2000) ("Nothing in [the CDA intermediary immunity] shall be construed to limit or expand any law pertaining to intellectual property.").
289. Religious Tech. Ctr. v. Netcom On-Line Commc'ns Servs., Inc., 907 F. Supp. 1361, 1365 (N.D. Cal. 1995).
290. See Chilling Effects, Keyword:Scientologists, http://www. chillingeffects.org/dmca512/keyword.cgi?KeywordID=10 (documenting a number of instances in which the Church used such notices against search engines).
291. Diebold v. Online Policy Group, 337 F. Supp. 2d 1195, 1200 (N.D. Cal. 2004).
292. Id. at 1201.
293. Pasquale, supra note 3, at 117. But see Goldman, supra note 3, at 195-98. Pasquale's precise specification of these cases responds to Goldman's critique that regulators cannot identify correct results as well as search engines can by restricting intervention to clearly identified mistakes.
294. See BATTELLE, supra note 1, at 184-86 (describing American Blinds' allegations that Google altered its search results to influence the judge's ruling on Google's motion to dismiss). Search engine watchers know that there are many innocent potential explanations for such behavior. Major search engines have multiple data centers, which may be out of sync with each other. An update might have taken place between one query and another the next day. And so on.
295. See generally SIMSON GARFINKEL, DATABASE NATION (2000) (cataloging the threats to privacy posed by database technology);
296. DANIEL SOLOVE, THE DIGITAL PERSON (2004) (examining the dangers of "digital dossiers" and proposing legal solutions).
297. Simply cutting and pasting a search result URL into one's address bar will hide from the provider the search query that, led one to their site. One can also install software to much the same end. See, e.g., Mozilla, RefControl, https://addons.mozilla.org/firefox/953/ (download page for RefControl, a program to hide referer [sic] information). Although the blocking of such query leaks by search users is possible, it also seems to be quite rare.
298. See Sonia K. Katyal, The New Surveillance, 54 CASE W. RES. L. REV. 297, 297-98 (2003) (discussing tile RIAA's attempts to locate infringing users through cell-phone records).
299. David Brin has written about this tension and has argued that the solution is greater transparency in general. We cannot keep people from surveilling others but can at least let those being surveilled know about it. See generally DAVID BRIN, THE TRANSPARENT SOCIETY (1998).
300. See Katie Hafner, Tempting Data, Privacy Concerns; Researchers Yearn to Use AOL Logs, but They Hesitate, N.Y. TIMES, Aug. 23, 2006, at C1 (discussing the academic ethics of research using publicly released AOL query data).
301. Consider this in light of Amazon's practice of recommending books by linking to books that users searched for or bought in the same browsing session. On such "collaborative filtering" systems, see generally JOHN RIEDL ET AL., WORD OF MOUSE: THE MARKETING POWER OF COLLABORATIVE FILTERING (2002).
302. Of course, ads can be personalized just as easily as organic search results can. See, e.g., William Marra, Yahoo's SmartAd Raises Privacy Concerns, ABC NEWS, July 4, 2007, available at http://abcnews.go.com/Technology/Story?id-3342775 (describing Yahoo's search-advertising program, which allows advertisers to tailor ad placement based on demographic information of users).
303. Cf. Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. REV. 23, 73-74 (2001) (arguing that personal autonomy and diversity are aided when individuals can use a medium to pursue their own informational choices).
304. See Tal Zarsky, Online Privacy, Tailoring, and Persuasion, in PRIVACY AND TECHNOLOGIES OF IDENTITY: A CROSS-DISCIPLINARY CONVERSATION (K. Strandburg & D. Stan Raicu eds., 2006), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=946498.
305. Substantial guidance may come from telecommunications law, which has long struggled with intermediaries' dual roles as speakers and as conduits. The greater interactivity of search engines - whose rankings are driven by providers' attempts to seek placement, by users' queries, and by search engine algorithms themselves - may require even more subtle analyses.
306. Jefferson County Sch. Dist., No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 855 (10th Cir. 1999).
307. Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 U.S. Dist. LEXIS 27193, at *11-12 (W.D. Okla. May 27, 2003).
308. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).
309. Id. at 18.
310. Id. at 20.
311. This view of the subjectivity of search results is consistent with an argument that they involve sufficient selection and arrangement to satisfy copyright's originality requirement.
312. See also Maughan v. Google Tech., Inc., 49 Cal. Rptr. 3d 861, 874 (Cal. Ct. App. 2006) (noting Google's emphasis that its search processes are completely automated).
313. Rebecca Tushnet has noted this tension. Tushnet, supra note 75. Raymond Nimmer observes that Search King did not involve a claim by a user "who detrimentally relied on the rankings themselves" and contrasts cases in which safety-ratings services "voluntarily assumed [a] role [that] invited reliance by the public." RAYMOND T. NIMMER, INFORMATION LAW § 10:77 (2006).
314. Moreover, this counterargument misses a basic reality of search engine business. Search engines are trying hard to maximize the subjective satisfaction of users with their search results, and on a query-by-query basis, it is extremely hard to find an objective "fact" in the degree of user satisfaction.
315. See James Grimmelmann, Google Replies to Search King Lawsuit, LAWMEME (Jan. 9, 2004), http://research.yale.edu/lawmeme/ modules.php?name= News&file=article&sid=807, available at http://web.archive.org/web/20040612081746/research.yale.edu/lawmeme/modules.php? name= News&file=article&sid=807; Pasquale & Bracha, supra note 3.
316. See, e.g., William Slawsky, 20 Ways Search Engines May Rerank Search Results, SEO BY THE SEA, Oct. 14, 2006, http://www.seobythesea.com/?p-3S4 (describing the systematic changes that search engines might make to results after the basic relevancy algorithm but before showing results to users).
317. See Google, An Explanation of Our Search Results, http://www.google.com/explanation.html (stating that search results are generated completely objectively and are independent of the beliefs and preferences of those who work at Google). Google drafted this text to respond to public complaints that the first-listed result for the search "Jew" was an anti-Semitic web site. This incident is significant in two ways. First, it revealed Google's extreme aversion to hand-tweaking its results, even though it would have been very easy to remove the anti-Semitic web site from results or move it further down the list. Second, this annotation required substantial public hand-wringing. (And note that Google now faces similar questions about what standards it will use every time it must decide whether to add this annotation to a results page.)
318. Brookfield Commc'ns, Inc., v. W. Coast Entm't Corp., 174 F.3d 1036, 1064 (9th Cir. 1999).
319. Compare Pop Warner Litle Scholars, Inc. v. N.H. Youth Football & Spirit Conf., No. 06-cn-98-SM, 2006 WL 2591480, at *3 (D.N.H. Sept. 11, 2006) ("Google and other search tools continue to associate defendants' web site with plaintiffs' marks [due to metatags] . . . ."), with Eric Goldman, Outdated Metatags Don't Infringe - Pop Warner v. N.H. Youth Football & Spirit Conference, TECH. & MKTG. L. BLOG (Sept. 25, 2006), http://blog.ericgoldman.org/archives/2006/09/ outdated_metata.htm (criticizing Pop Warner and stating, "[S]earch engines aren't that inefficient or inaccurate given that THEY ARE SMART ENOUGH NOT TO RECOGNIZE KEYWORD METATAGS IN THE FIRST PLACE").
320. See generally Stacey L. Dogan & Mark A. Lemley, Trademarks and Consumer Search Costs on the Internet, 41 Hous. L. REV. 777 (2004) (arguing that the "use in commerce" requirement includes a requirement that a trademark be used as a trademark).
321. But see Graeme B. Dinwoodie & Mark D. Janis, Confusion Over Use: Contextualism in Trademark Law, 92 IOWA L. REV. 1597, 1609, 1629-36 (2007) (arguing that "use in commerce" incorporates no such requirement and that such a requirement would be unwise, particularly for search engines).
322. See, e.g., Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1252 (9th Cir. 1982).