Google has been hit
with antitrust complaints in Germany from newspaper and
magazine publishers (Federation of German Newspaper
Publishers (BDZV) and the Association of German Magazine
Publishers (VDZ)) who want the company to pay for using
article snippets in its news service and search results.
The publishers also complain about a lack of
transparency in the way Google presents its search
results.
According
to
Geek
Hans-Joachim Fuhrmann, a
spokesman for the German
Newspaper Publishers
Association, said the Web sites
of all German newspapers and
magazines together made 100
million euros, or $143 million,
in ad revenue, while Google
generated 1.2 billion euros from
search advertising in Germany.
“Google says it brings us
traffic, but the problem is that
Google earns billions, and we
earn nothing,” Mr. Fuhrmann said.
Well, sound like the Rupert
Murdoch idea: We have no clue how to innovate our
business model, so let’s try to “extort” money out of
Google.
Ciao claims its contract with
Google unfairly limits its own ability to sell
advertising and that it lacks transparency because it
doesn't give the company the ability to review if ad
revenues paid by AdWords are correct.
Euro-Cities objects to Google’s
practice of offering free online mapping services.
Letting just anyone embed Google maps in their sites is
anti-competitive and killing its own business.
The so
called Zelnick Report, financed by the French government
recommends that big advertising companies like Google
and Yahoo be taxed. The tax would kick in anytime an ad
is clicked in France regardless of where the company is
based. This concept is likely to create all kinds of
legal and technical issues. With the expected revenue of
up to $ 28 million France wants to help the struggling
music and publishing sector. The Report blames Google
for the troubles, arguing the search engine profits from
works produced by content providers and doesn’t give
anything back.
3. Great Britain: Protection
of search engines from liability for copyright
infringement
There are discussions in Great
Britain about creating a new exemption from copyright law for search
engines that create copies of web pages in order to perform their
search duties (see
Outlaw).
The
proposed amendment:
"Protection
of search engines from liability for copyright
infringement
(1)
The
Copyright, Designs and Patents Act 1988 is amended
as follows.
(2)
After
section 116F (as inserted by section (Compulsory
licensing of recorded music to be made available via
the internet)) insert—
"116G
Protection of search engines from liability for
copyright infringement
(1)
Every
provider of a publicly accessible website shall be
presumed to give a standing and non-exclusive
license to providers of search engine services to
make a copy of some or all of the content of that
website, for the purpose only of providing said
search engine services.
(2)
The
presumption referred to in subsection (1) may be
rebutted by explicit evidence that such a licence
was not granted.
(3)
Such
explicit evidence shall be found only in the form of
statements in a machine-readable file to be placed
on the website and accessible to providers of search
engine services.
(4)
A
provider of search engine services who acts in
accordance with this section shall not be liable for
any breach of copyright in respect of the actions
described in subsection (1).""
4. Keyword Lawsuit
Morningware v. Hearthware
In
Morningware Inc. v. Hearthware Home
Products Inc.,
N.D. Ill, No. 09-4348, 11/16/09, the court relied on
Rescuecom Corp. v. Google to hold that Hearthware’s
purchase of plaintiffs trademark as keywords was an
actionable use in commerce. This behaviour might also
have initially confused consumers as to the source of
its products.
The text of the ad in question
reads: “The Real NuWave ® Oven Pro Why Buy an Imitation?
90 Day Gty.” Morningware alleges that the topmost
placement of Hearthware’s advertisement on the search
results page coupled with the “Why Buy an Imitation?”
statement demonstrates a false claim of product
superiority over Morningware’s products, and that this
misleads and/or confuses consumers into “believing that
[Morningware]’s products are inferior to Hearthware’s
because they are ‘Imitations,’ and thus fakes, of
Hearthware’s products, which they are not.” In its
decision the court declined to dismiss a product
disparagement claim and State Law claims.
5. Borings: 1 US
Dollar from Google?
The
Third Circuit has reinstated a lawsuit that the Borings filed
against Google after a driver for its Street View service took
photographs of their home. The court upheld the lower court’s
decision tossing most of the claims, but said the court erred on
the trespass claim: “The Borings have
alleged that Google entered upon their property without
permission. If proven, that is a trespass, pure and simple,” the
3rd U.S. Circuit Court of Appeals said. “It was thus improper
for the District Court to dismiss the trespass claim for failure
to state a claim.” But the Court hinted that Aaron and Christine
Boring may only be able to wrest $1 in damages from the search
company - unless they can prove that they were actually harmed in
the moment the Google driver lingered on their property.
6.
German Court Surprisingly Liberal on Derogatory
Domains & Likeliness of Confusion Online: www.bund-der-verunsicherten.de
The OLG
Braunschweig, which used to be known
for its TM-holder-friendly attitude,
has recently delivered a very
surprising liberal decision
concerning the likeliness of
confusion online in relation to a
criticizing website. Continue
reading at Maximilian Schubert's
http://austrotrabant.wordpress.com/.
A complaint filed
in Wisconsin alleges that purchasing a law firm’s name as keyword
violates the privacy rights of the named shareholders of that firm.
The claim is based on Wisconsin statute
§ 995.50 (2)(b),
which prohibits "the use, for advertising purposes or for
purposes of trade, of the name, portrait or picture of any living
person, without first having obtained the written consent of the
person."
Habush v. Canon,
Wis. Cir. Ct. No. 09CV018149, 11/18/09
Rescuecom seeks declaratory
judgement that its use of Best Buy’s trademark „geek
squad“ is legitimate. It’s the same Rescuecom that is
suing Google for trademark infringement because the
search engines allows advertisers to buy trademarks as
keywords… See
Shanda Literature Limited (SDL)
sued Baidu, China's biggest search engine claiming that its links lead to web sites that offer free ilegal downloads of
works written by their contracted writers (Chinadaily).
Canadian search engine Groovle has won a
domain name dispute with Google. The court held that the name was
not similar enough to confuse people and the word 'groovle' was more
closely linked to "groovy" or "groove" rather than Google
(BBC
News).
A
French appeals court has ruled against
Google in a case about Google Suggest.
Google has been ordered to remove the
word arnaque — which means
“scam” — from appearing as a Google
Suggest term on searches for the Centre
National Privé de Formation a Distance (CNFDI).
See
Big Mouth Media
and
Update 65 for information on the
first instance decision.
Yahoo has
settled a lawsuit by
American
Airlines about the alleged use of its name to trigger search
ads.
A new lawsuit over
allegedly mismanaged AdWord
bids. The plaintiff, Largo Cargo, claims that
"Google does not inform ist advertisers that if they leave
the CPC content bid input blank, Google will use the
advertiser’s CPC bid for clicks occuring on the content
network. Google does this despite the fact that ads placed
on the content network are demonstrably inferior to ads
appearing on search result pages. Because there is no option
to opt out of content ads during AdWords registration
process, advertisers reasonably believe that by leaving the
CPC content bid input blank they can opt out of having their
ads placed on the content network."
Zeck, Keven, Referential
Fair Use & Keyword Advertising: The Necessity of Product
Placement to our Domestic System of Free-Market
Enterprise, 44 Gonz. L. Rev. 519 2008-2009
Mercadante, Joseph M., What is
Google's Reputation Score? A Method for Modified
Self-Regulation of Search (2008). Available at SSRN:
http://ssrn.com/abstract=1118557
Ventose, Eddy D., Search
and You Will Find: Google AdWords and Trade Mark Protection (January
12, 2010). Journal of Intellectual Property Law and Practice,
2010. Available at SSRN:
http://ssrn.com/abstract=1535332
Lee, Edward,
Technological Fair Use (January 3, 2010). Southern California
Law Review, Forthcoming. Available at SSRN:
http://ssrn.com/abstract=1535389
Czerniawski, Michal, Responsibility of Bittorrent Search
Engines for Copyright Infringements (December 20, 2009).
Available at SSRN:
http://ssrn.com/abstract=1540913
Newsarchive
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