Joris van Hoboken

Google continues to increase its market share in the United States. This one Microsoft loses. (In Europe, Google’s market share is above 80 % and in many countries, e.g. Germany and Holland, well above 90 %.)

Microsoft researchers find evidence for ‘Cyberchondria’:

Our results show that Web search engines have the potential to escalate medical concerns. We show that escalation is influenced by the amount and distribution of medical content viewed by users, the presence of escalatory terminology in pages visited, and a user’s predisposition to escalate versus to seek more reasonable explanations for ailments. We also demonstrate the persistence of post-session anxiety following escalations and the effect that such anxieties can have on interrupting user’s activities across multiple sessions. Our findings underscore the potential costs and challenges of cyberchondria and suggest actionable design implications that hold opportunity for improving the search and navigation experience for people turning to the Web to interpret common symptoms.

Living in the US and consuming American mass media might very well lead to the same result. The amount of scary infomercials of the pharmaceutical industry is remarkable. They advertise for diseases I had never even heard of.

Google is about to launch SearchWiki. This new feature will allow authenticated users to edit their search results and share them with others. Not Google but users will start to personalize (further) Google’s organic search results. This is bad news for Wikia.

This Tuesday, I attended a lecture at Suffolk Law School by copyright law authority David Nimmer. Nimmer discussed the copyright implications and legal developments for text, image, video and book search. As the title suggests, he focused almost entirely on services provided by Google. His discussion of video search did not implicate ’search’ in the strict sense, but addressed the Viacom v. YouTube lawsuit. The Google Book Search has taken a different legal path since the proposed settlement, which received preliminary approval this week. Below are my notes of professor Nimmer’s discussion of text and image search.

Netcom and pre-DMCA

Nimmer started his discussion with the famous Netcom case of 1995. In RTC v. Netcom, Scientology sued a Bulletin Board Service (BBS) for infringement of copyright of Scientology material. Users of the BBS had posted the material on the BBS. In a pragmatic decision, the court concluded there was no direct and no contributory infringement, because there was no volition and no knowledge of the infringing activity respectively.

Nimmer then referred to the WIPO discussions about copyright leading to the WIPO Internet Treaties, and the legislative efforts in the United States leading to the well known Digital Millennium Copyright Act (DMCA), which currently provides for safe harbors for online intermediaries, including search engines, in section 512. He pointed out that part of the intermediary copyright liability regime in the DMCA are two provisions that state that exempted intermediaries have to (1) adopt a policy for repeat infringers and (2) conform to standard technological measures to prevent infringing activity (in other words adopt filtering measures if there is standard accepted filtering technology). He clarified that until now the latter provision has proven meaningless, because there are no such accepted filtering technologies yet. He did point to filtering technology companies as Audible Magic, claiming they had improved over the last decade to the extent that the provision would start to be meaningful. Recently, this reasoning received a serious blow when a Belgium court lifted an order to use filtering technology because it considered it to be ineffective.

Field v. Google

Focusing on text search and search engine caching, Nimmer discussed the case Field v. Google. Before addressing that case he discussed an image search case, Kelly v. Arriba Soft. In that case, the 9th Circuit held that the use of thumbnails did not require authorization by the rights holders because of fair use. The court considered the use of thumbnails transformative and stressed the value of the service provided by Arriba. Nimmer did not address the issue of inline linking in Kelly.

Going back to Field, he first explained the background of the case. Field, an attorney, was the publisher of a website with various stories and essays in which he held copyrights. He waited for Google to crawl, index and make available cached copies of this website and then sued Google for copyright infringement. Field, probably not surpisingly, lost on all accounts. The district court found no direct infringement. The court  also held that Google had four defenses with regard to possible direct copyright infringement. First, it had an implied license for the publication of cached copies. Second, Field was estopped from asserting its copyright claim against Google. Third, the conduct of Google amounted to fair use. And fourth, Google was entitled to the caching safe harbor in Section 512 (b) of the DMCA. It might be interesting to note that Field did not assert that the initial copying by Google as a result of crawling and indexing constituted direct infringement.]

The court in Field relied on Netcom in its conclusion that there was no direct infringement by Google:

[...] when a user requests a Web page contained in the Google cache by clicking on a “Cached” link, it is the user, not Google, who creates and downloads a copy of the cached Web page. Google is passive in this process. Google’s computers respond automatically to the user’s request. Without the user’s request, the copy would not be created and sent to the user, and the alleged infringement at issue in this case would not occur. The automated, non-volitional conduct by Google in response to a user’s request does not constitute direct infringement under the Copyright Act. See, e.g., Religious Tech. Ctr., 907 F. Supp. at 1369-70 (direct infringement requires a volitional act by defendant; automated copying by machines occasioned by others not sufficient);[...] Summary judgment of non-infringement in Google’s favor is thus appropriate.

Nimmer asserted that this reference to volition in Netcom was wrong, since the legislative history had replaced the holding in Netcom with the DMCA and the DMCA did not codify the volition criterion. He explained how in the Judiciary Committee, the Playboy ruling had first been overruled and the Netcom ruling held in favour, but that later the current DMCA framework was adopted that replaced both rulings.

Robots.txt and implied license

Nimmer seemed to be more pleased with the court’s conclusion with regard to the implied license. The argument of the court is based on the availability of an opt-out for webmasters, in the form of robots.txt, that makes it possible for them to exclude their material from crawling, indexing and caching in search engines. This, in Nimmer’s words, ‘idiot proof computer program’ lies at the basis of the implied license and the estoppels defense.

Fair use and DMCA defenses in Field problematic

Nimmer pointed out that the he considered the fair use defense problematic, because Googe copied and made available the complete material as an archival (cached) copy. Nimmer stated that the defense of section 512 b of the DMCA was not available to search engines. He clarified that this caching safe harbor involves 4 actors in the statutory provision. It is not applicable to search engine cache, because the actors involved in the statute do not map to the search engine context. The caching safe harbor is written for proxy caching. For a complete discussion, see Peguera 2008.

Nimmer also shortly discussed the famous Napster litigation, in which the safe harbor for linking and search engines did not apply because of knowledge of the infringement taking place with the help of its service.

Perfect 10 v. Google

Moving on to image search, Nimmer discussed the Perfect 10 v. Google case, which hasn’t ended yet. Perfect 10, a rights holder in adult pictures, sued various intermediaries, including Google and major credit card companies, for direct and/or indirect copyright infringement. The case is different from Field because the material that ended up in Google consisted of unauthorized copies. As a result the implied license and estoppels defense were not applicable here, since Perfect 10 had no control over the postings of the content like Field had. In his lecture, Nimmer focused on the question about fair use and indirect infringement. The fair use defense failed at the district court level, because the court found that there was an actual market for thumbnail size pictures (mobile phone downloads).  The Ninth Circuit reversed and remanded, with a complex ruling in two steps, arguing that the use of thumbnail images was commercial in nature but that the public interest had to be taken into account when determining whether the use was transformative. The case is back at the district court level. Nimmer said he was agnostic as to who we will ultimately win the case.

European developments

It is interesting to note that the European Commission has issued a Green Paper that deals with some of these important issues (in footnote 21) and that in Germany the image search litigation continues to be challenging for search engines.

Opennet Initiative’s revelation about search engine censorship has made it into TIME magazine.

I found this video quite enjoyable. Towards the end, in the Q&A, he is asked to address Google’s “do no evil” motto.

The Guardian is reporting about a proposal to make Internet service providers compete against each other on the speed they take down material after receiving notice. There has been one consistent criticism of the current regime for ISPs, namely that due process is not guaranteed by the current notice and takedown in Europe. See for instance Bernt Hugenholtz recent editorial in IIC. There is hard evidence that ISPs will takedown material without thoroughly checking its asserted unlawfullness. The proposal would make sense if it would not ask ISPs to compete on speed but on adequacy and observance of due process. This call by UK officials is shortsighted.

Here are the slides of my presentation at the Deep Search conference and my talk at the Cyberscholar meeting at Yale’s Information Society Project.

All the Deep Search presentations were professionally recorded and will be posted online in the next weeks. It was a very stimulating conference. Shirley Niemans of the Institute of Network Cultures has a Part I post. There will be a book in German in English as well.

UPDATE: Austrian public radio did interviews with the speakers at the Deep Search conference, which were broadcasted 16 July 2008.

NYTimes’ Bits has a great post with good links discussing what Google Flu Trends tells us about Google and privacy.

Chris Soghoian, student fellow at the Berkman Center, has a blog post at the Opennet Initiative about search engine filtering in Argentina. It appears that Argentinian law obliges search engines to take down defamatory results. Yahoo silently decided to completely block all results for Diego Maradonna in Yahoo Argentina. Google has removed some results it had to and has made it clear it will appeal some of the court orders.

There have been similar attempts to block results in Europe. In the Netherlands a TV hostess tried to get results removed from Google and did not succeed. In Germany, in 2005, the Berlin Trial Court ordered a search engine to block certain defamatory results and to install a filter that would prevent any future references with the combination of plaintiff’s name and the word nackt (naked). (LG Berlin, February 22, 2005 AZ: 27 O 45/05, MMR 2005, p. 324-326, CR 2005, p. 530-532). The ruling was later overruled.

Yahoo has been remarkably quiet about the filtering in Argentina and has gone further than needed. It seems that Yahoo is thereby not living up to its obligations under the freshly signed Global Network Initiative principles, which includes resistance to search engine censorship. Now it has added a notice on the SERP page, that some or all results are blocked in response to a court order.

Google had already raised awareness on its Google Latin America blog. There, Google states that in Europe the E-commerce directive (2000/31/EC) resolved the issue of search engine responsibility. Unfortunately, this is not the case. In particular, the claim that article 12 would protect search engines is misinformed, as everybody can read for themselves. None of the safe harbour provisions in the E-commerce directive are  applicable to search engines. A few EU countries have established safe harbour provisions for information location tools, in the absence of regulation at the EU level, but except for Austria they follow the hosting provider model, thereby establising a DMCA type of regime for defamatory search results. The result is opaque notice and takedown for search engine results that are defamatory or link to defamatory information.

I have followed search engine liability in Europe closely. To my knowledge, Google has never publicly took a stand on the absence of clear and transparent liability rules for search services, as it seems to be doing now in Argentina. From the perspective of transparency and freedom of expression, there is much room for improvement in the EU. Yahoo has argued for more legal certainty for search engine providers in response to a consultation in the UK that addressed search engine liability. Google did not respond to that consultation.