Google: The rise and rise of online intermediaries in the governance of the Internet and beyond (Part 2)

International Journal of Law and Information Technology

Volumn 21, Issue 2, 2013, Pages 187-234

  Kohl, Uta ^a  

^a ABERYSTWYTH UNIVERSITY   (United Kingdom)

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EID: 84877714594     PISSN: 09670769     EISSN: 14643693     Source Type: Journal    
DOI: 10.1093/ijlit/eat004     Document Type: Article

References (260)

1. Part 1: Uta Kohl, 'The Rise and Rise of Online Intermediaries in the Governance of the Internet and Beyond - Connectivity Intermediaries' (2012) 26 International Review of Law, Computers & Technology 185
2. For legal discussions on search engines see: Emily B Laidlaw, 'Private Power, Public Interest: an Examination of Search Engine Accountability' (2009) 17 International Journal of Law and Information Technology 113
3. Urs Gasser, 'Regulating Search Engines: Taking Stock and Looking Ahead' (2006) 9 Yale Journal of Law & Technology 124
4. Nico van Eijk, 'Search Engines: Seek and Ye Shall Find? The Position of Search Engines in Law' (2006) 2 Iris Plus - Legal Observation of the European Audiovisual Observatory 1, accessed 31 March 2013.
5. Nico van Eijk, 'Search Engines, the New Bottleneck for Content Access' in Brigitte Preissl, Justus Haucap and Peter Curwen (eds), TelecommunicationMarkets - Drivers and Impediments (Physica-Verlag 2009) 141
6. StephanOtt, 'Die Entwicklung des Suchmachine- undHyperlink-Rechts im Jahr 2009' (2010) 4 Wettbewerb in Recht und Praxis 435
7. Stephan Ott, 'Die Entwicklung des Suchmachine- und Hyperlink-Rechts im Jahr 2010' (2011) 6 Wettbewerb in Recht und Praxis 655
8. For discussions on intermediary liability see:DTI, Consultation Document on the Electronic CommerceDirective: The Liability ofHyperlinkers, Location Tool Services and Content Aggregators (June 2005) accessed 31 March 2013.
9. DTI, Consultation Document on the Electronic Commerce Directive: The Liability of Hyperlinkers, Location Tool Services and Content Aggregators - Government Response and Summary of Responses (December 2006) accessed 31 March 2013.
10. Thibault Verbiest and Gerald Spindler, Study on the Liability of Internet Intermediaries (12 November 2007) accessed 31 March 2013.
11. Maurice Schellekens, 'Liability of Internet Intermediaries: A Slippery Slope' (2011) 8 Scripted 154
12. Danny Goodwin, 'Yahoo Search Share Sinks, Google, Bing Rise in February 2012' (New York, 12 March 2012) Search Engine Watch accessed 31 March 2013.
13. Experian Hitwise, Data Center - Top Sites & Engines accessed 31 March 2013.
14. Debora L Spar, Ruling theWaves - Cycles of Discovery, Chaos, and Wealth from the Compass to the Internet (Harcourt 2001)
15. Michel Foucault, Discipline and Punish - The Birth of the Prison (Penguin 1977)
16. Bert-Jaap Koops, 'Law, Technology, and Shifting Power Relations' (2010) 25 Berkeley Technology Law Journal 973, 977 (provides an excellent account of current surveillance from a Foucauldian perspective)
17. It is expressly referred to in the context of art 14 of the Electronic Commerce Directive 2000/31/EC, Google France C-236/08, C-237/08 and C-238/08 CJEU, Grand Chamber (23March 2010), [2010]All ER (D) 23 (April), see n 27; and in the context of s 230 of the Communications Decency Act (US), Fair Housing v Roommates.com 521 F3d 1157 (9th Cir 2008) and Goddard v Google Inc 640 F Supp 2d 1193 (ND Cal 30 July 2009) referring to immune providers of 'neutral tools' as opposed to intermediaries that 'co-create'.
18. Langdon Winner, 'Do Artefacts have Politics?' (1980) 109 Daedalus 121, 122, challenging the idea 'that people have politics, not things'
19. Google, About Google - Company accessed 31 March 2013.
20. Randall Stross, Planet Google (Atlantic Books 2008) ch 1
21. The listing of results is known as SERP Rank (Search Engine Result Page Rank)
22. Stross (n 11) 28
23. Google acquired 'Postrank' to measure 'social engagement'
24. Google Panda was introduced in 2011 to improve the ranking of 'high-quality' sites and downgrades, eg sites with a lot of advertising
25. Otify, The Changing Face of SERPs: Organic Click Through Rate (Seattle, April 2011) accessed 31 March 2013.
26. This then also explains the fact that 80 per cent all of sites visited represent only 0.5 per cent of all websites, Laidlaw (n 2) 125.
27. Acknowledged in various legal contexts by Laidlaw (n 2)
28. Lucas D Introna and Helen F Nissenbaum, 'Shaping the Web: Why the Politics of Search Engines Matters' (2000) 16 Information Society 169
29. By the same token one may ask whether the differentiation between navigation/aggregation and hosting material is justified, particularly where there is very little difference apparent to the users
30. Case C-604/10 Football Dataco and Others v Yahoo UK Ltd (ECJ 1 March 2012)
31. Case No Civ-02-1457-M, 11-12 (WD Okla 13 January 2003)
32. Marshall McLuhan, Understanding Media: The Extensions of Man (McGraw-Hill 1964)
33. See Laidlaw (n 2) 124, where the author refers to a 2004 survey inGermany according to which 75 per cent of users rely on search engines as their principal means of finding a site
34. 'Generation Y' is referred to as the Google Generation rather than the Internet Generation: Hannah Spring, 'Health Professionals of the Future: Teaching Information Skills to the Google Generation' (2010) 27 Health Information and Libraries Journal 158
35. See also Daphne Keller, legal director and general counsel for Google, asserted at the Leveson inquiry 'Google is not the Internet'
36. See Josh Halliday, Dugald Baird and Lisa O'Carroll, 'Leveson Inquiry: Facebook, Google, Popbitch Executives Appear' The Guardian (London, 26 January 2012) accessed 31 March 2013.
37. For an interesting account, see Marcelo Thompson, 'In Search of Alerity: On Google, Neutrality, and Otherness' (2011) 14 Tulance Journal of Technology and Intellectual Property Law 137
38. Stross (n 11) 48
39. Langdon Winner, 'Do Artifacts Have Politics?' (1980) 109 Dædalus - Modern Technology: Problem or Opportunity? 121
40. HelenNissenbaum, 'Embodying Values in Technology - Theory and Practice' in Jeroen van den Hoven and John Weckert (eds), Information Technology and Moral Philosophy (CUP 2008) 322
41. Google FranceC-236/08, C-237/08 and C-238/08 CJEU, Grand Chamber (23 March 2010), [2010] All ER(D) 23 (April); Google France C-236/08, C-237/08 and C-238/08 AdvocateGeneral (22 September 2009); Google France v Louis VuittonMalletierCourt of Paris (4February2002); Google France v Vaiticum Luteciel, and Court of Appeal of Versailles (10 March 2005).; Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin Tiger Court of Appeal of Versailles (23 March 2006).
42. Fair Housing Council of San Fernando Val. v Roommates. Com 521 F3d 1157 (9th Cir 2008); see also Shiamili v Real Estate Group of New York Inc 892 NYS 2d 52 (NY App Div 2009).
43. Stross (n 11) 75. What exactly these are is another question and one that needs further attention.
44. See eg n 39 on secondary defamation liability or n 136 and accompanying text with respect to the mental element for contributory copyright liability
45. Mike Feintuck andMike Varney, Media Regulation, Public Interest and the Law (2nd ed, Edinburgh University Press 2006) 16 (internal marks omitted)
46. See also James Curran, Media and Power (Routledge 2002) 204ff
47. In relation to Subscription TV, the greatest income of source are the subscriptions thatmakes the provider the messenger of the subscribers, not the advertisers
48. For an excellent overview of both company's business models and dynamics, see BMImatters, Comparing Facebook and Google Business Models (18 April 2012) accessed 31March 2013.
49. Noting inter alia: 'Google has over amillion servers that process over a billion search requests every day. Google has invested billions of dollars in building huge data centers across the globe. The resulting economies of scale and economies of scope provide a sustainable competitive advantage to Google over new market entrants and existing players.'
50. For a description of the network effect in Google's case, see Kristine Devine, 'Preserving Competition in Multi-Sided InnovativeMarkets: How do You Solve a Problem like Google?' (2008) 10 North Carolina Journal of Law and Technology 59
51. See also Thompson (n 24) 165ff on the Google lock-in effect
52. Curran (n 32) 205
53. Parker v Google IncUS App LEXIS 16370 (3rd Cir, 10 July 2007). The CDA goes further than the traditional US distributor defence which applies where the distributor neither knows nor has reason to know of the defamatory content of the publication, Cubby Inc v CompuServe Inc 776 F Supp 135 (SDNY 1991).
54. s 1(1) of the Defamation Act 1996: 'in defamation proceedings a person has a defence if he shows that- (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement'. See also s 1(3)(a): 'a person shall not be considered the author, editor or publisher of a statement if he is only involved in printing, producing, distributing or selling printed material containing the statement'.
55. This issue is specific to search engines as a 'normal'manual hyperlinker would only be required to remove one link: Crookes v Newton [2009] BCCA 392, affirmed Crookes v Wikimedia Foundation Inc [2008] BCSC 1424, para 34: 'It is not my decision that hyperlinking can never make a person liable for the contents of the remote site. For example, if Mr. Newton had written "the truth aboutWayne Crookes is found here". .. this might lead to a different conclusion.' [emphasis in the original].
56. Google, Removing Content from Google (2012) accessed 31 March 2013.
57. According to Google's transparency report, in the UK there were three court orders in 2011-12 requesting removal of defamatory pages accessed 31 March 2013.
58. Google's insistence on a court order (although undoubtedly beneficial for free expression) means that it would lose the benefit of s 1 of the Defamation Act 1996 by failing to respond to individual requests
59. Metropolitan International Schools Ltd (t/a Skillstrain and/or Train2game) v Designtechnica Corp (t/a Digital Trends) & Ors [2009] EWHC 1765 (QB)
60. Discussed in Out-law.com, Google is not liable for defamatory snippets in search results, rules High Court (London, 17 July 2009) accessed 31 March 2013.
61. SADC 178, paras 31, 32
62. Designtechnica (n 41) para 49, relying on his judgment in Bunt v Tilley&Ors [2006] EWHC 407 (QB) (see Part 1)
63. Designtechnica (n 41) para 51
64. See n 49
65. John Murphy, Street on Torts (12th edn, OUP 2007) 26; Emmens v Pottle (1885) 16QBD354 comes very close to the commonlaw innocent dissemination defence, absolving mere disseminators from liability in the absence of knowledge, which was superseded by s 1 of the Defamation Act 1996, Designtechnica (n 41) paras 65-70
66. Designtechnica (n 41) para 80
67. Designtechnica (n 41) para 59
68. For an account of how Google approached automated language translation, see Stross (n 11) 80ff
69. BBC, 'Google Loses Australia 'Gandland'Defamation Lawsuit' (London, 31October 2012) BBC accessed 31March 2013.
70. Where the jury found Google not liable for the search results as the plaintiff's notice was incomplete by not stating the specific URLs which it wanted blocked; see also related litigation in Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88
71. OLG Hamburg (26 May 2011, 3 U 67/11); see also OLG Hamburg (20 February 2007, Az 7 U 126/06); OLG München (29 September 2011, 29 U 1747/11); KG Berlin (3 November 2009, Az 9 W 196/09); but see Argentinean case of Da Cunha v Yahoo de Argentina (Juzg N, No 99620/2006, 29 July 2009)
72. Where Google and Yahoo were liable for linking to defamatory content on the basis that search engines 'cannot evade the consequences arising from their automated processes'. accessed 31 March 2013.
73. OLG Hamburg (26 May 2011, 3 U 67/11) para 104 (it was taken into account in relieving Google of further duties)
74. NZHC 2352
75. Designtechnica (n 41) paras 85, 97; according to the judge it was up to parliament to extend themto search engines, as encouraged by the European Commission's First Report on the Directive (21 November 2003)
76. OLG Hamburg (26 May 2011, 3 U 67/11) para 107; Ott (2011) (n 2) 671, commenting on how the judiciary has restricted the scope of the immunities so much as to render them irrelevant
77. DTI (2005) (n 2) 14ff
78. Designtechnica (n 41) paras 97-114, see alsoDTI (2005) (n 2) 14ff. Spain and Portugal require a court order for the notice in art 14 which makes art 14 practically indistinguishable from arts 12 and 13. A theoretical difference would be that injunctions permitted under arts 12 and 13 would not be linked to liability of the intermediary, while compliance with an injunction is a pre-condition for the immunity from liability.
79. The notice-and-takedown duty is under review by the European Commission, A Clean and Open Internet: Public Consultation on Procedures for Notifying and Acting on Illegal Content hosted by Online Intermediaries (2012) accessed 31 March 2013.
80. OLGKöln (10May 2012, 15U199/11)
81. Rob D Young, 'Irish HotelDropsAutocompleteDefamation Case againstGoogle' Search Engine Watch (New York, 25November 2011) accessed 31 March 2013.
82. Kyodo, 'Google Sued over Cyber-defamation' Japanese Times (Tokyo, 17 June 2012) accessed 31 March 2013.
83. Centre National Privé de Formation a Distance v Google Tribunal de Grande Instance de Paris (4 December 2009) accessed 31 March 2013, overturning a previous judgment.
84. See Mike Mason, 'French Court Forcing Google to Remove Word 'Scam' from Google Suggest' TechDirt (Sunnyvale, CA, 14 January 2010) accessed 31 March 2013.
85. Seth Weintraub, 'French Court Convicts Google CEO Eric Schmidt of Defamation' CNNMoney (USA, 26 September 2010) accessed 31 March 2013.
86. Pinsent Masons, 'French Court Fines Google over Search Suggestion' Out-law.com (London, 9 January 2012) accessed 31 March 2013.
87. Google Inc v Anonymous Tribunale Ordinario di Milano (Milan, 31 March 2011) accessed 31 March 2013.
88. Discussed in Pinsent Masons, 'Google is Responsible for 'Autofill' Search Terms, Says Italian Court' Out-law.com (London, 11 April 2011) accessed 31 March 2013.
89. MikeMasnik, 'Two Separate Rulings in France Split over Whether Google's Suggestion Algorithm can be Libelous' TechDirt (Sunnyvale, CA, 24 July 2009) accessed 31 March 2013.
90. Malcolm Gladwell, The Tipping Point - How Little Things can make a Big Difference (Abacus 2001), 141ff
91. AdWords refers toGoogle's sponsored links that are displayed on the top and on the side of organic results in response to a search term. Google auctions keywords (search terms) to businesses that pay Google for each click on their link.
92. Google, AdWords Trademark Policy (2012) accessed 31 March 2013.
93. Described in Rosetta Stone Ltd v Google Inc 676 F3d 144, 151 (4th Cir 2012). Before 2004 Google had not allowed trademarks as keywords or within the actual ad if the trademark owner had requested such restriction.
94. Google, 'Update to Canadian, UK and Ireland Ad Text Trademark Policy' (4 August 2010) accessed 31 March 2013; see also Ott (2010) (n 2) 436.
95. Rosetta Stone (n 71) 156 (internal marks omitted)
96. Note a businessmay, eg use a competitor's trademark legitimately in the context of comparative advertising (see eg Directive 84/450)
97. Google (n 70)
98. Rosetta Stone (n 71) 156
99. Rosetta Stone (n 71) 152
100. Rescuecom Corp v Google Inc 562 F3d 123 (2nd Cir 2009); see also Google Inc v American Blind and Wallpaper Factory Inc, No 03-cv-05340 JF (RS) (ND Cal 18 April 2007) (AdWords system may constitute trademark infringement to be determined by a jury trial); Jurin v Google Inc 2:09-cv-03934-GHK-E (CD Cal 23 July 2009); Ascentive v Google Inc 2:09-cv-02871 (ED Pa 30 July 2009)-all of which were voluntarily dismissed by the plaintiff
101. Eric Goldman, 'Rescuecom Abandons its Litigation Against Google' Technology & Marketing Law Blog (Santa Clara, 5 March 2010) accessed 31 March 2013.
102. ss 32 and 43 of the LanhamAct, inter alia, impose liability for unpermitted 'use in commerce' of another's mark which is 'likely to cause confusion, or to causemistake, or to deceive. .. as to the affiliation. .. or as to the origin, sponsorship or approval of his or her goods [or] services. .. by another person'.
103. F3d 1137 (9th Cir 2011), but see also Morningware, Inc v Hearthware Home Prods Inc WL 3878251 (ND Ill 16 November 2009)
104. Google France (AG) (n 27) para 14ff, noting that a number of countries had confirmed the legality of trademarked keywords of AdWords (Austria, Belgium, Germany, Italy, the Netherlands and the UK) in contrast to France
105. Google France (CJEU) (n 27) discussed in 'Casenote on Joined Cases C-236/08, C-237/08 & C-238/08, Google France SARL v Louis VuittonMalletier SA, 2010 ECJ EUR-Lex LEXIS 119 (Mar. 23, 2010)' (2010) 124 Harvard Law Review 648.
106. Paul Przemyslaw Polanski, 'Technical, Automatic and Passive: Liability of SearchEngines for Hosting Infringing Content in the Light of the Google Ruling' (2011) 6 Journal of International Commercial Law and Technology 42
107. Court of Paris (4 February 2002)
108. Court of Appeal of Versailles (10 March 2005)
109. Court of Appeal of Versailles (23 March 2006)
110. Google France (AG) (n 27) para 46
111. See art 5 of Directive 89/104/EEC and, on Community marks, art 9 of Regulation 40/94
112. Google France (AG) (n 27) para 117, also para 49
113. Google France (AG) (n 27) para 121ff (emphasis added)
114. Lilian Edwards, 'Stuck in "Neutral"? Google, AdWords and the E-Commerce Directive Immunities' (2009/2010) 20 Society for Computers & Law accessed 31 March 2013.
115. Google France (CJEU) (n 27) para 56ff. Art 5(1)(a) of the Directive 89/104/EEC and, in the case of Community marks, art 9(1) of the Regulation 40/94. For the US test of 'use in commerce' see Picture It Sold Inc v iSOLD IT LLC 199 F App'x 631 (9th Cir 2006); Government Employees Insurance Co (GEICO) v Google Inc 330 F Supp 2d 700 (ED Va 2004); contrast Rescuecom Corp v Google Inc 456 F Supp 2d 393 (NDNY 2006).
116. Casenote (n 85) 654ff
117. Casenote (n 85) 653, considering C-206/01 Arsenal Football Club [2002] ECR I-10273
118. Google France (CJEU) (n 27) para 99, see also para 102. On the issue of primary liability for trademarked AdWords see: Interflora vMarks and Spencer [2009] EWHC 1095 (Ch) and Interflora vMarks and Spencer C-323/09 CJEU, First Chamber (22 September 2011) applied in Ate My Heart Inc v Mind Candy Limited [2011] EWHC 2741 (Ch). See also Wintersteiger AG v Products 4U Sondermaschinenbau GmbH C-523/10 CJEU, First Chamber (19 April 2012), dealing with the jurisdictional question where a case against such an advertiser may be brought.
119. Art 11 of Directive 2004/48/EC provides that 'Member States shall also ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.'
120. Google France (CJEU) (n 27) paras 106-20
121. Google France (AG) (n 27) para 48
122. Google France (AG) (n 27) para 123
123. For secondary liability in the UK, see eg Unilever Plc v Gillette (UK) Ltd [1989] RPC583 CA; L'Oreal SA&Ors v eBay International AG & Ors [2009] EWHC 1094 (Ch) and L'Oreal SA & Ors v eBay International AG & Ors C-324/09 CJEU, Grand Chamber (12 July 2011)
124. Google France (CJEU) (n 27) para 119; the European Commission takes this view (para 108). Leaving that decision to national courts is unfortunate, as different courts may well come to different conclusions. In 2010, Google came to an agreement with the French authority in respect of its AdWords. Art 14 is even less likely to extend to Google's organic results as the webpages are not stored at the request of the site providers.
125. Recital 42 of the Electronic Commerce Directive 2000/31/EC
126. Google France (CJEU) (n 27) paras 115 and 116, respectively. It is unlikely that the court meant that the financial benefit derived from third party wrongdoing should not matter at all, given that any such benefit impacts on the intermediary's incentive to encourage or suppress the activity in question, and given that someone who benefits from an activity should also shoulder responsibility for it. See also s 512(1)(B) of the Digital Millennium Copyright Act 1998 (US) according to which a service provider does not qualify for the safe harbour, if it receives a financial benefit directly attributable to the infringing activity in a case in which the service provider has the right and ability to control such activity.
127. Rosetta Stone (n 71), vacated in part Rosetta Stone Ltd v Google Inc 730 F Supp 2d 531 (ED Va 2010) (trademark infringement and dilution); see also Rosetta Stone Ltd v Google Inc 732 F Supp 2d 628 (ED Va 2010) (unjust enrichment)
128. Ott (2011) (n 2) 661ff, referring to a study by Lesley Chiou and Catherine Tucker, 'How does the Use of Trademarks by Third-Party Seller Affect Online Search?' (2012) 31Marketing Science 819, accessed 31 March 2013.
129. Rosetta Stone (n 71)
130. [230S] of the Communication Decency Act on immunities for online intermediary does not extend to intellectual properties (s 230(e)(2))
131. Since then Rosetta Stone has dropped the suit: Don Jeffrey, 'Rosetta Stone Agrees to Drop Google Trademark Suit' Bloomberg (New York, 31 October 2012) accessed 31 March 2013.
132. See also Gucci America Inc v Hall & Associates 135 F Supp 2d 409 (SDNY 2001)
133. Rosetta Stone (n 71) 152; see also the fraud case of Goddard v Google Inc 640 F Supp 2d 1193 (ND Cal 30 July 2009) on Google's 'neutrality' concerning the suggestion function within the keyword tool
134. Rosetta Stone (n 71) 163ff
135. Rosetta Stone (n 71) 164
136. [600] F3d 93 (2d Cir 2010), discussed in depth in Part 3
137. [194] F 3d 980 (9th Cir 1999)
138. Rebecca Dunlevy, 'Internet Immunity: The Limits of Contributory Infringement Against Online Service Providers' (2012) 22 FordhamIntellectual Property, Media and Entertainment Law Journal 927, 958 (see also discussion of 'design enabled' infringement 962ff)
139. Currently, fault based on negligence does not appear to be supported in relation to any liability of search engines, but see Agustin Waisman and Martin Hevia, 'Theoretical Foundations of Search Engine Liability' (2011) 42 International Review of Intellectual Property and Competition Law 784
140. Daniel Seng, 'Comparative Analysis of National Approaches of the Liability of the Internet Intermediaries' WIPO (22 June 2011) accessed 31 March 2013.
141. Lillian Edwards, 'The Role and Responsibility of Internet Intermediaries in the Field of Copyright and Related Rights' WIPO (22 June 2011) accessed 31 March 2013.
142. Perfect 10 v Google Inc 416 F Supp 2d 828 (CD Cal 2006), where the court referred to the 'dazzling capacity of Internet technology to assemble, organize, store, access, and display intellectual property "content" '
143. It is generally accepted that those who post information on the Internet can be assumed to have consented to being hyperlinked and searched (implied licence) unless they have implemented the simple measures to stop it, eg Church of Spiritual Technology v Dataweb [2000] ECDR 83; IPPI v Belgacom Skynet NV [2000] ECDR 239; Finn Eiendom AS and Finn No As v Notar AS TrondheimDC (Norway); Blake A Field v Google Inc 412 F Supp 2d 1106 (D Nev 2006) and also Perfect 10 (n 117), affirmed in parts in 508 F3d 1146 (9th Cir 2007).More controversial is deeplinking: Shetland Times Ltd v Jonathan Wills and Another 1997 FSR (Ct Sess OH, 24 October 1996, Scotland); Danish Newspaper Publishers Association v Newsbooster Bailiff Court of Copenhagen (5 July 2002), but Copenhagen Court (24 February 2002); Copiepress v Google Tribunal de Premiere Instance de Bruxelles (13 February 2007) Verlagsgruppe Handelsblatt v Paperboy BGH (17 July 2003, I ZR 259/00) and BGH (22 June 2011, I ZR 159/10).
144. Viacom International Inc v YouTube Inc 676 F3d 19 (2d Cir 2012) considering the Digital Millennium Copyright Act 1998 in relation to YouTube is also relevant to search engines (discussed below)
145. Google, Transparency Report- FAQ accessed 31March 2013.
146. For the period between July andDecember 2011, Google states that it 'removed 97% of search results specified in requests'
147. Jennifer M Urban and Laura Quilter, 'Efficient Process or Chilling Effects -Takedown Notices under Section 512 of theDigitialMillienium Copyright Act' (2006) 22 Santa ClaraComputer&High Technology Law Journal 621: 'Over half-57%-of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors.'
148. Google allows the operator of the infringing website to file a counter-notification which unblocks the URL, unless the complainant files a lawsuit within 10 days
149. Google, Transparency Report - Removal Requests - Copyright, accessed 31 March 2013.
150. Jonathan Bailey, 'Why are DMCA notices Skyrocketing? PlagiarismToday (11 September 2012) accessed 31 March 2013.
151. For example, in theUKthrough commercial providers such as theCopyrightHouse or in theUS through the US Copyright Office (governmental institution)
152. See eg Sophie Stalla-Bourdillon, 'Should Search Engines Begin toWorry?' (2010) 14 Journal of Internet Law 3
153. DTI (2005) (n 2) 18ff. Verbiest and Spindler (n 2) 88ff, noting also that in France and Germany search engine liability is dependent on notice of infringement.
154. On the copyright legality of thumbnails liability, see two judgments by the German highest court: Vorschaubilder I BGH (29 April 2010 I ZR 69/08) and Vorschaubilder II BGH (19 October 2011 I ZR 140/10)
155. See also Luca Ferrari and Barbara Sartori, 'SearchEngines' (2011) 13 E-Commerce Law & Policy 16, on an Italian judgment on Yahoo Italia's liability for contributory copyright infringement through linking
156. Twentieth Century Fox Film Corp v Newzbin Ltd [2010] All ER (D) 43; Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd&Ors [2012] EWHC 268 (Ch) (only the first two heads of liability were raised here). See also the Dutch case concerning a specialised mp3 search engine: TechnoDesign v Stiching Brein Gerechtshof Amsterdam(15 June 2006 LJNNo AX7579, 85489/HAZA 02-992) discussed in Verbiest and Spindler (n 2) 90.
157. Brenda van der Wal, 'Court Puts an End to Exploitation of Mp3 Search Engine' (2006) 7:16/28 IRIS accessed 31 March 2013.
158. s 16(2) of the Copyright, Designs and Patents Act 1988
159. CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] AC 1013; Twentieth Century Fox (n 129) 4, para 108: 'mere (or even knowing) assistance or facilitation of the primary infringement is not enough'
160. s 20(2)(b) of the Copyright, Designs and Patents Act 1988; Twentieth Century Fox (n 129) para 125: the defendant's subscription piracy site was 'not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants' films available to a new audience, that is to say its premium members.'
161. CBS Inc v Ames Records&Tapes Ltd [1982] Ch 91, 106
162. Twentieth Century Fox (n 129) para 90
163. Dramatico Entertainment Ltd (n 129) paras 78-80
164. Similarly, in Heise OLGMünchen (23 October 2008 Az 29U 5696/07) liability for contributory copyright infringement for a hyperlink in an online newspaper was held to be a justified interference with freedom of the press whenever (i) the linked-to site created a danger of significant infringement by those who followed the link (in that case, by providing software to circumvent digital rights) and (ii) the hyperlinker was aware of that. For linker liability in an unfair competition see Schöner Wetten BGH (1 April 2004 Az I ZR 317/01).
165. The applicability of theDirective's immunities to the organic search engine results is unlikely, unless they have been expressly extended to them, as discussed above
166. [508] F 3d 1146 (9th Cir 2007) partly affirmed and partly reversed Perfect 10 (n 117)
167. Warren B Chik, 'The Google Conundrum: Perpetrator or Facilitator on the Net? - Forging a Fair Copyright Framework Of Rights, Liability and Responsibility in Response to Search Engine 2.0 - Part 1: The Google Images Search Engine' (2011) 27 Computer Law & Security Review 11.
168. The highest court in Germany has ruled that thumbnails do not normally give rise to copyright infringement, see above n 126
169. Perfect 10 (n 117) 835; in relation to some images Perfect 10 had provided a copy of the image and/or the homepage of the infringing site
170. The court based this decision on the 'fair use' defence on the basis that Google's use was of a highly transformative nature given their function in making online images accessible
171. Perfect 10 v Google Inc 508 F 3d 1146, 1172 (9th Cir 2007)
172. 17 USC s 512(d)
173. 17 USC s 512(d)(3)
174. 17 USC s 512(d)(1)(B)
175. See eg Perfect 10 Inc v CCBill LLC 488 F3d 1102 (9th Cir 2007); Io Group, Inc v Veoh Networks Inc 586 F Supp 2d 1132 (ND Cal 2008); UMG Recordings Inc v Veoh Networks Inc 665 F Supp 2d 1099 (CD Cal 2009)
176. Viacom International (n 119) partly affirmed and partly vacated Viacom International Inc (n 119) 718 F Supp 2d 514 (SDNY 2010)
177. Anna Katz, 'Copyright in Cyberspace:Why Owners should Bear the Burden of Identifying the Burden of Identifying Infringing Materials under the Digital Millennium Copyright Act' (2012) 18 Boston University Journal of Science & Technology accessed 31 March 2013.
178. [17] USC s 512(c)(3) on the 'elements of notification' is also applicable to s 512(d) for 'Information Location Tools' (ie search engines)
179. Viacom International (n 119) 31
180. Perfect 10 Inc (n 146) 1113
181. Viacom International (n 119) 35
182. Katz (n 147) text accompanying n 52; see Viacom International (n 119) 718 F Supp 2d 514, 528f (SDNY 2010) where the court rejected that a 'representative list' would be valid if it merely gave a generic description of the protected words (eg all works by Gershwin) without giving the work's locations at the site which would require the service provider to engage in a factual search
183. Perfect 10 Inc (n 146) held that a service provider can ignore notices that are not substantially compliance with the requirements of s 512(c)(3)
184. Capitol Records Inc v MP3tunes LLC 821 F Supp 2d 627 (SDNY 2011) where it was held that substantially non-compliant notices do not establish actual or 'red flag' knowledge of infringement that would disqualify an intermediary from the DMCA
185. S 102(a)(2) of the SOPA Bill Text 112th Congress (2011-12)HR 3261 IH, made the threshold for liability of 'foreign infringing sites' the concept of 'facilitation' which is lower than current US or UK copyright law. Note the equivalent treaty on a world stage, the Anti-Counterfeiting Trade Agreement has been rejected by the European Parliament.
186. S 102(2)(2) (B) on search engines, (C) on payment providers, (D) on Internet advertising services of the Bill Text 112th Congress (2011-12) HR 3261 IH
187. Google may profit from piracy sites as was alleged in Perfect 10 according to which Google continued to place its ads around the infringing images, despite numerous notices from Perfect 10
188. Jenny Wortham, 'With Twitter, Blackouts and Demonstrations, Web Flexes its Muscle' New York Times (New York, 18 January 2012) accessed 31 March 2013.
189. See also Motion Picture Association of America Inc, Press Release of 17 January 2012 accessed 31 March 2013.
190. Nomia Iqbal, 'Google Action against YouTube Music Rip Off Websites' BBC (London, 3 August 2012) accessed 31 March 2013.
191. For the response by the BPI see, Michale Coyle, 'Google to Launch its Own Music Site' Lawdit Readingroom (Southampton, 15 August 2012) accessed 31 March 2013.
192. Google, 'An Update to Our Search Algorithms' Inside Search - The Official Google Search Blog (10 August 2012) accessed 31 March 2013.
193. Clare Welling, 'New Code of Conduct Proposed to Tackle Piracy' Lawdit Readingroom (20 February 2012) accessed 31 March 2013.
194. Google, Advertising Policies - Copyright accessed 31 March 2013.
195. David Gilbert, 'Court claims Google is Facilitating Copyright Infringement' International Business Times (19 July 2012) accessed 31 March 2013.
196. No Civ-02-1457-M (WD Okla 13 January 2003)
197. BGH (1 April 2004 Az I ZR 317/01); see also BGH(18 October 2007 Az I ZR 102/05) on the liability for links to pornography sites without age verification measures
198. See also the early case of Phonefile v Startsiden District Court of Oslo (29October 2003) where an Internet portal was held not liable for links to file-sharing programmes as they could be found anyway and be used for non-infringing purposes
199. LG Hamburg (16 September 2004 Az 315 O 755/03)
200. Laidlaw (n 2)
201. Other causes of actions invoked to challenge the ranking of search engines are, eg defamation (Kinderstart.com LLC v Google Inc C 06-2-57 (RS) (ND CA 16 March 2007)) and tortuous interference with the contractual relations with its customers (Search King Inc v Google Technology Inc Civ-02-1457-M (WD Okla 13 January 2003))
202. Andrew Odlyzko, 'Network Neutrality, Search Neutrality, and the Never-ending Conflict between Efficiency and Fairness in Markets' (2009) 8 Review of Network Economics 40, 47
203. Verlagsgruppe Handelsblatt v Paperboy BGH (17 July 2003 I ZR 259/00) on deeplinking
204. Stross (n 11) 2
205. Odlyzko (n 171) 49
206. Rescuecom Corp v Google Inc 562 F3d 123 (2nd Cir 2009) (confusion possible); LGHamburg (21December 2004 Az 312 O 950/04) (no confusion)
207. C 06-2-57 (RS) (ND CA, 16 March 2007)
208. [474] F Supp 2d 622 (D Del 2007)
209. [2009] WL 3059092 (9th Cir, 24 September 2009), affirmed Person v Google Inc C 06-7297 JF (RS) (ND Cal, 16 March 2007)
210. (No 09CVH10-14836, Court of Common Pleas of Ohio, Franklin County, Civil Division, 31 August 2011); see also Tradecomet.com LLC v Google Inc 647 F3d 472 (2011) (affirmed dismissal of claim based on a forum selection clause).
211. Google Inc v MyTriggers. Com Inc (No 09CVH10-14836, Court of Common Pleas of Ohio, Franklin County, Civil Division, 31 August 2011) 5ff.
212. Kinderstart.com LLC v Google Inc C 06-2-57 (RS) (ND CA 16March 2007) 4, with the falling traffic to the site there was a corresponding fall in revenue of the company via the company's AdSense adverts (AdSense allows providers to place advertisements from the Google Network onto their site, receiving payments from Google for these placements).
213. Kinderstart.com LLC v Google Inc C 06-2-57 (RS) (ND CA 16 March 2007) 6-8.
214. Autorité de la Concurrence (30 June 2010, No 10-MC-01) accesse d 31 March 2013.
215. European CompetitionNetwork, ECN Brief 01/2011 accessed 31 March 2013.
216. See also, Charles Arthur, 'Google Fined £400,000 in France for Making its Maps Service Free' The Guardian (3 February 2012) accessed 31 March 2013.
217. Eric Pfanner, 'Google, in Settlement, Changes Ad Rules in France' The New York Times (New York, 28 October 2010) accessed 31 March 2013.
218. Germany is proposing changes to its copyright law which would require search engines and other online aggregators to pay for snippets scraped fromother websites
219. Pinsent Masons, 'GermanNews Aggregators Face Publisher Levy under Planned Changes to Copyright Laws' Out-law.com (London, 8November 2012) accessed 31 March 2013.
220. See also 'Newspapers versus Google: Taxing Times' The Economist (London, 8 November 2012) accessed 31 March 2013.
221. Urska Petrovcic, 'The Italian Competition Authority AcceptsGoogle's Commitments in the Investigation Concerning Google News in Italy' Berkeley Global Antitrust Blog (Berkeley, 15 February 2012) accessed 31 March 2013.
222. Joaqui{dotless}́n Almunia, Vice President of the European Commission responsible for Competition Policy, Statement of VP Almunia on the Google Antitrust Investigation (Brussels, 21 May 2012, Reference: SPEECH/12/ 372) accessed 31 March 2013.
223. Tom Krazit, 'Attorney General Greg Abbott has asked Google for Information regarding the complaints of several companies that Google is penalizing them in Search Results' CNET (San Francisco, 3 September 2010) accessed 31 March 2013.
224. See also The State of Texas v Google Inc (D-1-GV-12-000887, District Court of Travis County, Texas (Austin), 21 June 2012) where Google Inc was sued for failing to hand over relevant documents in the AG's anti-trust inquiry
225. Senate Judiciary Committee, Subcommittee on Antitrust, Competition Policy and Consumer Rights, The Power of Google: Serving Consumers or Threatening Competition? (21 September 2011) accessed 31 March 2013.
226. Steve Lohr, 'Drafting Antitrust Case, F.T.C. Raises Pressure on Google' The New York Times (New York, 12 October 2012) accessed 31 March 2013.
227. On Google's challenge to (democratic) state authority, see Thompson n 24
228. Foucault (n 5) 202
229. Richard Holt, 'Google Refuses to Censor Search Results Accusing Police of Covering Up Crime' The Telegraph (London, 24 January 2013) accessed 31 March 2013.
230. Google, Transparency Report - Government - United Kingdom accessed 31 March 2013.
231. Google, Transparency Report - Government accessed 31 March 2013: 'We received a request from the UK's Association of Police Officers to remove five user accounts that allegedly promoted terrorism.
232. We terminated these accounts because they violated YouTube's Community Guidelines, and as a result approximately 640 videos were removed.'
233. Dominic Rushe, 'Google Reports 'Alarming' Rise inCensorship byGovernments' TheGuardian (London, 18 June 2012) accessed 31 March 2013.
234. Google (n 197)
235. Reinout Rinzema and Rembrandt Brouwer, 'The Netherlands: Illegal Content to be Removed from Cache Memory Search Engines' (2010) 26 Computer Law & Security Review 661 (ruling that an individual who published wrongful accusations on the Internet regarding sexual abuse, and had been ordered to remove the illegal content and related references to the extent that they could be accessed through search queries, must also remove such content from the cache of Google)
236. 2005/29/EC (including penalties in art 13)
237. Mario Cisneros et al v Yahoo!, Inc et al Case No: CGC-04-433518, where the plaintiffs were seeking to enjoin the defendants from 'participating in, and continuing to market, sell, and display advertising for illegal Internet'
238. See also, Thibault Verbiest, 'Major Search Engines Sued for Taking Online Gambling Ads' (2004) 3 World Online Gambling Law Report 8
239. Maria Del Mar, 'Yahoo and Google Absolved from Gaming Lawsuit' Pokernewsdaily (Las Vegas, 3 December 2008) accessed 31 March 2013.
240. Jason Ryan, 'Microsoft, Google, Yahoo to Pay $31.5M over Illegal Gambling Ads' abcnews (New York, 19 December 2007) accessed 31 March 2013.
241. BBC, 'Google Pays $500min Canada Drug AdWords Row' (London, 24 August 2011),accessed
242. For an early example of hyperlinker liability, see LICRA & UEJF v Yahoo! Inc & Yahoo France Tribunal de Grande Instance de Paris (20 November 2000) where the French subsidiary of Yahoo! Inc was found liable in a civil nuisance/public order action for providing a link to the offending US Yahoo site
243. Maggie Shiels, 'Google Tackles Child Pornography' BBC (London, 14 April 2008) accessed 31 March 2013.
244. Discussed in Part 1 (n 1)
245. Federal Trade Commission, 'FTCObtains CourtOrder Halting Deceptive Mortgage Relief Internet Ads; Marketers Falsely Claimed to Operate MakingHomeAffordable.gov' (18 May 2009), accessed 31 March 2013; discussed in Ott (2010) (n 2) 444.
246. Charles Arthur, 'Google Privacy Policy Slammed by EU Data Protection Chiefs' The Guardian (London, 16 October 2012) accessed 31 March 2013.
247. The EUData Protection Authorities (forming an Art 29Data ProtectionWorking Party, led by the French Data Protection Authority, CNIL) launched an investigation into the compliance of Google's Privacy Policy with the European Data Protection legislation (the Data Protection Directive 95/46/EC and the ePrivacy Directive 2002/58/EC) and sent its recommendations to Google: Letter of 16 October 2012
248. Annexe: Re'gles de Confidentialité de Google: Principales Conclusions et Recommendations, accessed 31 March 2013.
249. Google, Google+ and Profile Names, accessed 31 March 2013.
250. Foucault (n 5) 221
251. Steven Farmer, 'Increased Regulation Ahead for Search Engine Providers and Social Networking Providers?' (2011) 11 World Data Protection Report 6
252. TizianoMotti and Anna Záborská, Written Declaration, pursuant to Rule 123 of the Rules of Procedure on setting up a European early warning system (EWS) for paedophiles and sex offenders (19 April 2010, 0029/2010) accessed 31 March 2013.
253. Katitza Rodriguez, 'EU Search Engine Snooping Mandate Sneaked into Child Protection Declaration' (15 June 2010) Electronic Frontier Foundation accessed 31 March 2013.
254. Sir Paul Kennedy, Interception of Communications Commissioner, and Joanna Cavan, Chief Inspector, Interception of Communications Commission, at Joint Committee on the Draft Communication Data Bill (16 October 2012) accessed 31 March 2013.
255. Ss 1, 4, 9 of the Communications Data Bill
256. [28S] of the Communications Data Bill. Brian Wheeler, 'Communications Data Bill creates a virtual giant database' (19 July 2012) BBC accessed 31 March 2013.
257. For a discussion of the limited ambit of theData RetentionDirective, see Lukas Feiler, 'The Legality of theData Retention Directive in Light of the Fundamental Rights to Privacy and Data Protection' (2010) 1 European Journal of Law and Technology accessed 31 March 2013.
258. Ss 14-16 of the Communications Data Bill
259. Lawrence Lessig, Code and Other Laws of Cyberspace (Basic Book 1999)
260. Paul Levinson, Digital McLuhan (Routledge 1999) 11ff