A recently enacted law seeks to remove all such content from the internet in India. Facebook, Google, Yahoo and Microsoft were sued under the law and had been arguing in Indian court that it was all but impossible for them to comply as a practical matter. The law makes online publishers potentially liable for the acts of individual users and third parties (think “offensive” blog hosted on Blogger or “objectionable” video uploaded to YouTube).

According to a BBC report Indian Communications Minister Kapil Sibal said the following in December about the desired impact of the new law:

My aim is that insulting material never gets uploaded. We will evolve guidelines and mechanisms to deal with the issue. [The companies] will have to give us the data, where these images are being uploaded and who is doing it.

Google, Facebook and others had argued that they had no control over individuals and should not be held liable for their conduct accordingly. They said they cannot “pre-filter” material generated by millions of users. This is what would be called a “prior restraint” against free speech in the US.

Indian courts have been unsympathetic and demanded that the companies comply or be blocked entirely “like in China.” The BBC says that the companies have now complied and removed offending material at issue in a particular civil lawsuit.

However the overly vague nature of the statute on which these claims are based almost guarantees that Google, Yahoo, Facebook, Microsoft and other online publishers in India will face a steady stream of litigation from individuals or groups “offended” by this or that image, article or video.

Stock image used under license from Shutterstock

Related Entries

• Free Speech Battle In India: Google, Facebook Summoned By Court Over “Inflammatory Images”
• India Set To Bring Heavy Hand Of Censorship Down On Facebook, Google
• EU Ready To Impose Tough Privacy Rules On Google, Facebook
• US Government Makes Most Content Removal Requests To Google So Far in 2011

The mortgage scams under investigation by SIGTARP involve bad actors who lured in unsuspecting troubled homeowners with online advertising. The ads, and accompanying landing pages, made false promises to homeowners who sought to restructure their mortgages and lower their payments. Some landing pages showed seals that made them falsely seem to be government agencies. Instead of helping, some took up-front payments, got property deeds signed over to them, and encouraged homeowners to cease communicating with their lenders. Others convinced homeowners to hand over sensitive financial information. SIGTARP says some victims lost their homes as a result.

“Many homeowners who have fallen prey to these scams were enticed by Web banner ads and online search advertisements that promised, for a fee, to help lower mortgage payments,” said Christy Romero, Deputy Special Inspector General for SIGTARP, in a statement.

Last week, SIGTARP announced a similar operation with Google, which involved 85 different scams and more than 500 online advertisers and agencies.

Now Yahoo is reversing itself.

The Europeans had been demanding search/IP data retention of less than six months. And last January Microsoft agreed to comply with that standard. Google, however, refused to retain search records for less than 18 months. The company claimed this extended time frame was necessary to improve services and prevent fraud.

Yahoo: We Need It To “Compete”

Yahoo’s rationale in “going back” to 18 months is different. Yahoo says it needs the data to better compete with rivals. According to the Associated Press, Yahoo wants to hold on to the search data for more content/services personalization and better ad targeting:

Anne Toth, who oversees privacy matters at Yahoo as its chief trust officer, said the company is operating in a different competitive environment today . . . To keep up, she said, Yahoo needs to be able to offer its own highly personalized services — including online shopping recommendations, customized news pages and search tools that can anticipate what users are looking for. To pick out patterns for such personalization, Toth said, Yahoo needs to analyze a larger set of data on user behavior.

Argument Against Self-Regulation?

The Yahoo decision flies in the face of US government efforts to increase online privacy for consumers. Right now there’s a debate going on about industry self-regulation vs. government-imposed rules. As the AP article points out this move provides ammunition to those calling for externally imposed regulations.

Yesterday Yahoo posted mixed but slightly better-than-expected Q1 results. However search revenues were unexpectedly down and have been declining quarter over quarter:

Extending the time that personal search data are retained is unlikely to address the challenge of falling search revenue. However it may help improve display ad targeting and revenues, which have been growing for the company.

Related Entries

• Microsoft Complies With EU Demand, First To Cut Data Retention To Six Months
• Google Halves Data Retention Time Against Backdrop Of EU Pressure, US Regulatory Scrutiny
• European Groups Says Search Engines Must Delete Search Data Within Six Months
• Microsoft To Anonymize Log Data; Calls For Industry Standards Along With Ask.com
• EU Group May Serve Google With Letter Over Data Retention Policies
• European Union Questions Google’s Data Retention Policy

Yahoo Guilty for Linking to Infringer

Yahoo (in its capacity as a search engine) has been found liable for helping facilitate copyright infringement by indexing and linking to sites that allowed the unauthorized download of an Iranian film called “About Elly.” (It’s curious that this case wasn’t brought against Google, which has a market share in Italy of nearly 90 percent.)

Plaintiffs in the case were the film’s distributor and a media affairs company (PFA, Open Gate Italia). I’m unable to read the Italian reports about the case. But according to Sean Carlos at Antezeta, which is based in Italy, the decision says that once a search engine is notified of any alleged copyright violation they become liable for aiding the infringement if they don’t remove links to the offending sites.

Decisions about Organic and Ads Going Opposite Ways

It would appear that cases involving copyright or trademark infringement regarding “organic” content are going the opposite way from those involving trademark claims in paid search advertising. Increasingly Google and Yahoo/Bing by extension are being absolved of liability for trademark claims involving paid search ads. For example in the celebrated LVMH (Luis Vuitton) AdWords case, the French high court ruled that Google did not infringe trademark law by allowing advertisers to bid for competitors’ trademarks as keywords. (But see European Advocate General Finds Against Trademark Bidding in Interflora Case.)

What’s important here is that while individual advertisers could be held liable for infringement Google was not on the hook for their bad behavior (with some caveats). The YouTube and Yahoo cases feature the opposite outcome, making Google and Yahoo potentially legally responsible for all the content they index. In particular the Yahoo decision puts a heavy burden on the company to become an arbiter of copyright law or simply remove any links from the index once there’s a claim of infringement. Sean Carlos at Antezata argues this might lead to abuse by unscrupulous competitors.

Bad Decision Creates Practical Challenges

That’s less of a concern in my mind than the bad precedent. Assuming this decision stands it creates a host of practical challenges for search engines. For Yahoo and Bing those are potentially compounded.

Under the new liability rules announced by the court, Yahoo would need to pass infringement notifications on to Microsoft because Bing is now the organic index behind Yahoo Search. That relationship adds some complexity (and exposure) to the process because Microsoft would ultimately need to do the link removal or enforcement.

What if Yahoo is notified of an alleged infringement and then conveys that to Microsoft and then Microsoft fails to act. Plaintiffs sue and Yahoo points at Microsoft as the party that failed to act?

Overall it’s a mistake to hold search engines to the same legal standards as traditional publishers, concerning libel and copyright law. The scale and scope of search is very different than conventional publishing or TV broadcasting. Indeed, search engines don’t have control over the many millions of sites they index.

But Italy’s regulators and courts won’t hear any of it. They’ve apparently had enough of this internet thing.

(Image via Shutterstock)

Related Entries

• European Advocate General Finds Against Trademark Bidding in Interflora Case
• Italian Court Finds Google Execs Guilty Of Violating Privacy Code
• Italy To Regulate YouTube & Other Video Sites Like TV Stations
• Google Wins Legal Battle Over AdWords Trademark Issue In Europe
• Europe Needs Bing, But Does Bing Need Europe?

Allen first filed the lawsuit in late August, but it was dismissed earlier this month as being too vague. The district court judge gave Allen until today, December 28, to refile.

According to the Seattle Times, the new lawsuit explains in more detail how the eleven companies allegedly infringed on Allen’s patents and includes several screenshots showing where Allen’s company believes the defendants are infringing on its patents.

There’s more discussion on Techmeme.

(image courtesy Andrew Feinberg via Creative Commons)

Judge Marsha Pechman agreed with both Google and AOL, who said that Allen’s lawsuit was too vague. Allen’s patent infringement complaint “failed to identify the infringing products or devices with any specificity,” Pechman wrote in her ruling. You can read the full decision on Groklaw.

Allen has until December 28th to refile the case.

He first filed the lawsuit in late August, accusing 11 companies — including Google, Yahoo, AOL, and Facebook — of infringing on technology developed a decade ago by Interval Research Corp., a technology lab that Allen owned between 1992 and 2000.

There’s more discussion on Techmeme.

The lawsuit centers on technology developed a decade ago by Interval Research Corp., a technology lab that Allen owned between 1992 and 2000. Eleven companies are named in the lawsuit: Google, Yahoo, Facebook, AOL, eBay, YouTube, NetFlix, Office Depot, OfficeMax, and Staples. The lawsuit claims four patent violations of technologies that are widely used by search engines and e-commerce sites, according to the WSJ:

The technology behind one patent allows a site to offer suggestions to consumers for items related to what they’re currently viewing, or related to online activities of others in the case of social networking sites.

A second patent, among other things, allows readers of a news story to quickly locate stories related to a particular subject. Two others enable ads, stock quotes, news updates or video images to flash on a computer screen, peripherally to a user’s main activity.

A Google spokesperson gave this statement to the WSJ:

This lawsuit against some of America’s most innovative companies reflects an unfortunate trend of people trying to compete in the courtroom instead of the marketplace.

A Facebook spokesperson told the Journal, “We believe this suit is completely without merit and we will fight it vigorously.”

The lawsuit doesn’t include a damage estimate.

There’s more discussion at Techmeme.

(chart via http://www.opensecrets.org/lobby/clientsum.php?year=2009&lname=Google+Inc&id=)

As Google has grown, its business interests have clearly led to wanting a stronger voice in Washington, DC. We’ve documented the Department of Justice’s opposition to Google’s Book Search Settlement and the company’s legal speedbumps over Street View many times in the past. Late last year, the FTC announced it would look more closely at Google’s AdMob purchase. And with Google expanding away from search into the telephone, business software, and other industries, government lobbying becomes even more important. Indeed, the CRP says Google has lobbied on a variety of issues ranging from advertising and copyright to energy and even homeland security.

Google’s increase in lobbying expenses even has the company closing the gap on Microsoft, which spends the most on lobbying of the main three search engine companies. While Google’s lobbying spend was up 42% in 2009, Microsoft’s was down 24% to $6.7 million.

(chart via http://www.opensecrets.org/lobby/clientsum.php?lname=Microsoft+Corp&year=2009)

Although it’s lower, that total still puts Microsoft at the head of the class in the CRP’s tracking of Computer/Internet industry lobbying, ahead of IBM, Oracle, the Entertainment Software Association, and Google (in fifth place).

Yahoo is on the list, but its lobbying spending also declined in 2009 to $1.97 million, a 16% drop from $2.35 million in 2008.

(chart via http://www.opensecrets.org/lobby/clientsum.php?year=2009&lname=Yahoo%21+Inc&id=)

As you’d expect, some of Yahoo’s lobbying issues in 2009 were on antitrust issues and “educational efforts around the Microsoft/Yahoo! search deal.”

Xerox says one patent automatically generate a query based on keyword searches, where Google’s AdWords & AdSense and Yahoo’s Search Marketing, YPN and other products allegedly infringe on. Another patent Xerox is suing the companies over is based on updating pages based on user reviews.

Xerox sued Google and Yahoo on February 19th in federal court in Wilmington, Delaware. Xerox wants both compensation and to prevent Google and Yahoo from using the technology.

Bill McKee, a spokesman for Xerox told Bloomberg:

We’ve been in dialogue with Google and Yahoo for some time without coming to a resolution. We believe we have no option but to file suit to properly protect our intellectual property.

Today we sent a letter to the Article 29 Working Party notifying them of our intention to make a change to Bing’s data retention policy.

Specifically, we are reducing the amount of time we store IP addresses from searchers to 6 months.  Currently we keep that information for 18 months before we delete it.  Generally, when Bing receives search data we do a few things: first, we take steps to separate your account information (such as email or phone number) from other information (what the query was, for example). Then, after 18 months we take the additional step of deleting the IP address and any other cross session IDs associated with the query. Under the new policy, we will continue to take all the steps we applied previously – but now we will remove the IP address completely at 6 months, instead of 18 months.

Google and Yahoo have yet to agree to this, but Microsoft’s move puts pressure on them to do so. Google has argued in the past that it needs to store user date to improve the quality of search:

Back in March 2007, Google became the first leading search engine to announce a policy to anonymize our search server logs in the interests of privacy. And many others in the industry quickly followed our lead. Although that was good for privacy, it was a difficult decision because the routine server log data we collect has always been a critical ingredient of innovation. We have published a series of blog posts explaining how we use logs data for the benefit of our users: to make improvements to search quality, improve security, fight fraud and reduce spam.

Currently Google “anonymizes” IP addresses on its server logs after nine months. Again, what Microsoft is agreeing to do is not just make anonymous but completely delete IP addresses after six months.

Google will likely have to match Microsoft’s position and will have difficulty continuing to argue that IP data retention for more than six months is necessary for any purpose. Yahoo may, upon implementation of the Microsoft-Yahoo Search deal, automatically be opted in to this via Microsoft’s compliance.

Here are previous posts on this subject:

• Google Halves Data Retention Time Against Backdrop Of EU Pressure, US Regulatory Scrutiny
• European Groups Says Search Engines Must Delete Search Data Within Six Months
• Google, Yahoo, Microsoft, & Other Search Engines Must Comply With EU Privacy Rules
• Microsoft To Anonymize Log Data; Calls For Industry Standards Along With Ask.com
• EU Group May Serve Google With Letter Over Data Retention Policies
• European Union Questions Google’s Data Retention Policy