Update 40: June 1, 2006
1. The Latest Attack Against Torrent Sites
The Motion Picture Association of America and major
film and TV studios filed suit February 23 against seven Web sites for copyright
infringement. The suit alleges that defendants knowingly enable, encourage,
induce and profit from massive online piracy by indexing so called eDonkey hash
links, thus enabling users to locate and download infringing copies of
Plaintiffs' copyrighted motion pictures and television shows for free and
without authorization. By clicking on the file name, an illegal copy of the
movie or television program is automatically copied to a user’s computer. Sites
sued include Torrentspy.com, TorrentBox.com and Ed2k-it.com. It is the first
time that the studios and the MPAA sue indexing Web sites in the US (we have seen
similiar lawsuits in Germany; they were successfull!)
One complaint can be found at
http://pub.bna.com/eclr/060037.pdf.
2. Denmark, Netherlands and
India: New Deep Linking Decisions
Over the last
ten years, a number of deep-linking cases have been litigated in the United
States and abroad. The courts in most countries (e.g. USA, Germany and Austria)
have come to the conclusion that deep linking is permissible and no copyright
infringement. The operator of a web site can not prohibit deep links to his site.
In the last few months several cases from other countries have been reported to
me, that I want to mention in this update:
In 2001 a court in Copenhagen,
Denmark ruled in favor of the Danish Newspaper Publisher's Association against
the online news aggregator Newsbooster. Thereby deep linking has been ruled
illegal. In 2006, the Danish Maritime and Commercial Court has taken the
opposite stance. The court accepted the use of deep links. The Danish web portal
Ofir.dk had made deeplinks to real estate advertisements on the Internet,
including advertisements from the market leading estate agency chain Home, who
sued Ofir. The court stressed that search engines and deep links are desirable
for the functioning of the internet today:
"Different kinds of search services which may be considered to be increasing in
number on the Internet must be considered to be desirable as being necessary for
the functioning of today’s Internet as a medium for searching and exchanging an
incredibly extensive and steadily increasing quantity of information. The
database protection that is one purpose of the Database Directive also reflects
these conditions. It must be considered that search services generally make
available deep links whereby the user can efficiently directly arrive at the
desired information which, as the Internet is established and functions,
generally must be seen to comply with the interests followed by those who choose
to use the Internet for the provision of information to the public."
(Home v. Ofir, Maritime and
Commercial Court Ruling, February 24, 2006, English translation of the relevant
parts
available here;
pdf in Danish)
-
March 6, 2006:
Groundbreaking Judgment Deep Linking, Law & Justice:
"In a groundbreaking judgment the Danish Maritime and Commercial Court
accepted the use of deep linking in relation to real estate advertisement."
Other country, same opinion:
Zoekallehuizen.nl (”Searchforallhouses.nl”; ZAH) is a search engine, which
searches all web sites of estate agents in The Netherlands for houses that are
for sale on a daily basis and places the results of its search actions on its
websites in the form of deeplinks. A court in Arnhem denied two estate agents
and the Dutch Association of Estate Agents (NVM) a injunction to stop ZAH from
deep linking. According to the court, deep linking is permissible and the texts
accompanying the deep links are allowed under the quotation right.
And finally, a closer look to India:
In the beginning of 2006,
in a case between the search engine Bixee.com and job site
Naukri.com, the Delhi High Court in India prohibited Bixee.com
from deeplinking to Naukri.com. This is the first case of its
kind in India.
-
March 23, 2006: Bhaswati Chakravorty,
The Deep Linking Conundrum:
"Deep linking has confounded the Internet community always. As the
Naukri case becomes the first-ever in India, we try to delve into its
evolution"
3. US Law would stop metatag
abuse by porn sites
The U.S. Department of Justice (DOJ) will push
for new legislation that
requires all commercial
Web sites to label every
page that includes adult
material in an effort to
protect Web users from
pornography. The
proposed law is called "Child Pornography
and Obscenity Prevention
Amendments of 2006"
and
would prohibit
commercial Web sites
from initially
displaying sexually
explicit material
without further action,
such as an additional
click.
The DOJ initiative would
also
make it illegal for a
person to knowingly
deceive others into
viewing obscene
materials. This could
effect the use of
metatags, cloaking,
doorway pages or other
search engine
manipulation methods
that are used by e.g. some
porno-sites that try to
lure people to their
sites although they are
searching for "innocious
content" like toy names
or popular film stars.
-
McCullagh, Declan,
Gonzales calls for
mandatory Web labeling
law, CNet:
"Web
site operators posting
sexually explicit
information must place
official government
warning labels on their
pages or risk being
imprisoned for up to
five years, the Bush
administration proposed
Thursday."
4. Google and Child Porn
Nassau County Legislator Jeffrey Toback is
suing Google because the search engine is allegedly profiting from child
pornography and taking in billions of pounds by allowing child
pornography and "other obscene content" adverts on their sites through sponsored
links. The
lawsuit says that Google is "the largest and most efficient facilitator and
distributor of child pornography in the world." Google "continues to put
its economic gains ahead of the interests and well-being of America's children,"
the lawsuit, filed in Nassau State Supreme Court alleges.
According to The Sydney Morning Herald Google spokesman Steve
Langdon responded: "Child pornography is illegal, and Google prohibits it in our
products. When we find or are made aware of any child pornography, we remove it
from our products, including our search engine. We also report it to the
appropriate law enforcement officials and fully co-operate with the law
enforcement community to combat child pornography".
As for the lawsuit's chances of success, they seem to
be very small, see Goldman, Eric,
Google Sued for Child Porn--Toback v. Google, Technology & Marketing Law
Blog
Toback v. Google, Inc., No.
06-007246 (NY Sup. Ct.
complaint
filed May 4, 2006)
-
May 10, 2006:
Google accused of profiting from child porn,
The Register:
"Google has been sued by Nassau County Legislator Jeffrey Toback who
claims the search giant is promoting and profiting from child pornography,
going so far as to suggest that child porn is part of its business model,
according to reports."
-
May 5, 2006: Broache, Anne, Suit
accuses Google of profiting from child porn, CNet:
"Google has made child pornography an "obscenely profitable and integral
part" of its business and must be stopped, a new lawsuit claims."
5. Click Fraud case not settled
yet (see Update
38)
On the matter of the proposed
settlement that Google is trying to make in California regarding click fraud,
the judge is expected to consider the class-action settlement in late July. The
former Google advertiser Joseph Kinney sued in Arkansas state court to block the
settlement, arguing the amount grossly understates how much the online search
engine leader has benefited from "click fraud."
The agreement is available
here
(PDF), and the order giving preliminary agreement is available
here.
Also see "
The Click
Settlement Website"
6. Belgian Company Sues Google Over Google
Suggest Suggestions
A Belgian network-monitoring outfit called
ServersCheck has sued Google claiming its tool bar points the way to pirated
software. The suit claims that Google's Suggest feature shows would-be
purchasers of ServersCheck software where to get the latest cracks and pirated
versions. When you begin to type your search at
Google Suggest
on "ServersCheck"
it brings up results for e.g. "ServersCheck Crack" and "ServersCheck Serial."
New in Legal Resources:
-
Rechtsanspruch auf Aufnahme
in den Suchindex marktbeherrschender Suchmaschinen, NIP 2/2006, p. 43-48
-
Yohan Benizri, "L'hypertexte:
mise à jour, mise à disposition et mise à mort" (forthcoming, University of
Ottawa Law and Technology Journal, Summer 2006)
-
Ernst, Stefan, AdWord-Werbung in Internet-Suchmaschinen als kennzeichen- und
wettbewerbsrechtliches Problem, MarkenR 2006, 57-59
-
Nimmer, Raymond, "Google Print Project" - Unfair Use of Copyright, CRI 2006,
1-6
PS: There have been lot of decisions regarding metatags and keyword
advertising in Germany, France and in the USA. I will cover these in the
next update.