1. Regulating Search?: A
Symposium on Search Engines, Law, and Public Policy
The Information Society Project
at Yale Law School presented "Regulating Search?: A Symposium on Search Engines,
Law, and Public Policy," the first academic conference devoted to search engines
and the law on December 3, 2005 at Yale Law School in New Haven, CT. The
symposium brought together technologists, policymakers, entrepreneurs,
executives, lawyers, computer scientists, and activists to discuss the emerging
field of search engine law. More information on the conference can be found at
http://islandia.law.yale.edu/isp/regulatingsearch.html. Eric Goldman posted
some notes he took at the conference in his
Technology and Marketing Law Blog.
2. AdSense Extortion in Germany
M. Adams of nimzoservices.com
has been slowly increasing the AdSense revenue for some German web sites over
the last few months. Last week he sent e-mails to the operators demanding money
for his "service" in the future. If they choose not to comply he would increase
the clicks so that Google would take notice and possibly cancel the website
owner's AdSense account.
Loose translation of the
Dear Mr. XY,
you probably have
noticed an increase in your AdSense revenue during October. This is a direct
result of us including your website in our test program.
For details see
As you can learn
from your latest payments from Google, our concept works very well. We have
about 1000 German employees to test web sites...
With their help
we are able to increase the number of web site visitors and income from
We are also able
to "destroy" AdSense accounts by increasing the click rate so that Google will
notice it and delete the account.
As you surely can
understand, we want to participate in the revenue increase. So far we have no
contractual relations. There are two options for you:
You reject our
offer and refuse to pay us money. In this case we will stop our activities.
However, you risk loosing your latest revenue and your AdSense account.
You accept our
offer and pay us 50% of the increased revenue. We then will continue to slowly
increase the revenue.
I believe it is
an easy decision for you. The second alternative is a win-win situation for both
Please let us
know your decision immediately.
The case was discussed in more
detail in the
abacus forum. Google has been notified by several webmasters and
they have already tracked down a Mr. Lutzenberger as the real person behind the
December 3, 2005:
Geschäftsmodell AdSense-Missbrauch, Heise:
"Wie verschiedene Teilnehmer des Werbeprogramms Google AdSense berichten (1,
2), manipuliert ein angeblicher Michael Adams der in Panama ansässigen
Firma Nimzoservices.com die Zugriffe auf AdSense-Werbeeinträge."
3. Search Engines and
Obviously Google controlls a
large share of the search market (about 40-50% in the USA, 70-80% in Germany). Aweb site not listed in Google is as good as no web site these days. Google has
the power to influence the selection and immediacy of Internet purchases in all
industries. Despite this apparent monolopy there has been very few discussion of
anti-trust law and the search engine market. Shouldn't the big question be: Is
Google obliged to include a website in its index? So far, I only know of three
articles on this topic in Germany. I'm currently working on an article on the subject and
would welcome opinions from Links & Law readers. Especially, if you are not from
Germany, I would be very interested in publications, I might not be aware of yet.
On Wednesday, 23 November 2005,
Bram Cohen, the founder and chief executive of BitTorrent
and Motion Picture Association of America Chairman Dan Glickman announced a
collaboration with the goal of inhibiting film piracy.
BitTorrent is a peer-to-peer
(P2P) file distribution application that can be used to distribute files without
the permission of the copyright holder. Cohen said
BitTorrent.com will remove all links to pirated content owned by MPAA companies
from its search engine.
"BitTorrent Inc. discourages the use of its technology for distributing films
without a license to do so," Cohen said in a statement. "As such, we are pleased
to work with the film industry to remove unauthorized content from
bittorrent.com's search engine."
It is expected that the move
will do little to actually reduce piracy, as the search
engine on BitTorrent.com is just one of many that finds "torrents". Many other
websites continue to refer visitors to movies, though the MPAA began suing some
November 24, 2005: Tanner,
MPAA, Bit Torrent reach agreement, DMasia: "The Motion Picture Association of America
(MPAA) announced yesterday that it has reached an agreement with Bram Cohen,
the designer of peer-to-peer (P2P) software Bit Torrent, to remove links to
video content owned by the seven member studios of the MPAA from
November 23, 2005: Jardin, Xeni,
A Torrent or a Trickle?, Wired News:
"It's all but certain the deal between the Motion Picture Association of
America and BitTorrent creator Bram Cohen won't dent the file-swapping
epidemic, let alone stop it."
November 23, 2005: Utter,
BitTorrent And MPAA Find Common Ground, Webpronews:
"The creator of the high-speed file sharing application has linked up with
Hollywood studios in an effort to clamp down on movie piracy and promote a
way for film distributors to get their wares to users online."
5. AdWords-Decision in France
Does the selling of trade mark
protected keywords by internet search engines, such as Google, infringe trade
mark owner's rights? There have been many decisions worlwide (see this
One decision in France went quite unnoticed this year. I have found no report on
it in English or German. Thanks to a reader from France, here is the link to the
judgement in the Amen vs. Googe France and
Espace 2001 case:
Hubbert v. Dell
An Illinois appeals court held
that plaintiffs who purchased computers over the defendant's website were bound
to an arbitration clause contained in the "Terms and Conditions of Sale,” even
though they were not required to click on an “I agree” button specific to those
terms of sale. To make
their purchases, each of the plaintiffs completed online forms on five of the
defendant's Web pages. On each of the five Web pages, the defendant's "Terms
and Conditions of Sale" were accessible by clicking on a blue hyperlink.
According to the court "the
blue hyperlinks on the defendant's Web pages, constituting the five-step process
for ordering the computers, should be treated the same as a multipage written
paper contract. The blue hyperlink simply takes a person to another page of the
contract, similar to turning the page of a written paper contract. Although
there is no conspicuousness requirement, the hyperlink's contrasting blue type
makes it conspicuous. Common sense dictates that because the plaintiffs were
purchasing computers online, they were not novices when using computers. A
person using a computer quickly learns that more information is available by
clicking on a blue hyperlink."
Dell, Decision of August
12, 2005, Appelate Court of Illinois, Fifth District
Court enforces Online Agreements, Including Terms Accessibale Via
JetBlue Airways Corp.
Plaintiffs brought this
action against JetBlueAirways Corporation for alleged violations of the
Electronic Communications Privacy Act of 1986 and violations of state and common
law. In their view defendants violated their privacy rights by unlawfully
transferring their personal information to Torch for use in a federally-funded
study on military base security. The defendant contended that the policy could
only be accessed and viewed by clicking on a seperate stand-alone link on the
bottom of a JetBlue Web page and was not a term of the contract of carriage. The
court rejected this argument, but did not discuss it in detail, because it found
that plaintiffs werde unable to plead or prove any actual contract damages.
7. Hyperlinks & Law in
A visitor from Colombia sent me
a comment from the National Copyright Office which deals with hyperlinks. Due to
my lack of the Spanish language and the inefficiency of automated translation
programs, I did not understand very much of it. As far as I can tell, the
Colombian Law gives an author the exclusive right to make his work available
online. In the opinion of the Copyright Office, hyperlinks can violate that
right. This is contrary to what most courts have decided on this topic worldwide.
If you are interested in the comment, don't hesitate to contact me and I will
e-mail it to you. The essential part of it could be the following:
"Como se puede observar, en uno u otro caso, el
hipervínculo permite interconectar diversos sitios en la web, con lo cual, es
fundamental entender que un link no es, simplemente, una nota de pie de página
que pretende facilitarle al lector información adicional del tema que se
encuentra en otro sitio. (...) tiene un elemento de contenido. Su elemento
operativo radica en el código fuente que instruye al browser para que muestre un
contenido que se encuentra en otra página de internet. Su elemento de contenido
se constituye en el material al cual se dirige
anterior análisis nos permite identificar, que si con estos hipervínculos se
enlazan contenidos protegidos por el derecho de autor, será necesario entonces,
contar con la autorización del autor o del titular del derecho.
sentido, el artículo 8 del Tratado de la OMPI sobre Derecho de Autor, establece
a favor de los autores de obras literarias y artísticas el derecho exclusivo de
autorizar la puesta a disposición del público de sus obras, a través de medios
alámbricos o inalámbricos, que permita a los miembros del público acceder a
estas obras desde el lugar y en el momento que cada uno de ellos elija.
Retomando precisiones anteriormente hechas de
carácter técnico, en el momento de tener almacenados contenidos (hipertextos) y
permitir, por medio de hipervínculos, el acceso a contenidos protegidos por el
derecho de autor, se debe contar con la autorización previa y expresa de los
titulares de los derechos patrimoniales de tales obras, por darse otro acto de
comunicación pública en el entorno digital, como es la puesta a disposición del
público que atiende al principio general del derecho exclusivo de orden
patrimonial que tiene el titular de realizar, autorizar o prohibir cualquier
clase de uso respecto de su creación."
8. Merry Christmas!
This is the last update of
2005 and I wanted to use this opportunity to wish all readers a Merry Christmas and
a happy new year. Special thanks to all the people, who have sent me e-mails
this year informing me about cases I have missed, discussing various topics or
just gratulating me on the comprehensive website on hyperlinks and search
engines. Without this input, the work on the website would only be half the fun.
The Links & Law
website is updated regularily,
so check back for updated
information and resources about
search engine and linking issues.