The fit-filled Google MPAA feud mirrors that of the Hatfields and McCoys. And thanks to the now infamous “Sony hack,” stakes have been raised in the Online Copyright War.
Concerned about information revealed in the leaked Sony emails, Google decided to sue the already beleaguered state of Mississippi. Huh? What does Mississippi have to do with the MPAA-Google beef? Keep reading.
Round 734 of the Google MPAA Feud: The “Get Tough On Online Copyright” Email
A pesky little email, from of the inbox of MPAA general counsel Steven Fabrizio, sparked Google’s lawsuit against Mississippi. In the email, Fabrizio mentions the studio’s “get tough” plan to strong arm Google on the issue of online piracy – or as the MPAA calls the search company, “Goliath.”
An excerpt, from the email, for your gawking pleasure:
“Creating an environment to potentially increase the impact of the AG effort requires additional resources devoted to investigation and analysis of Goliath. This investigation and analysis would give the AGs a greater understanding of the problems created by Goliath (ammunition/evidence against Goliath), and the technical solutions for those problems.”
Google MPAA Feud: The Kernel of Animosity
What is the kernel of animosity between Google and the MPAA?
The discord boils down to this: the movie studios and their lobbyists want tech companies to do everything in their power to curtail online copyright infringement (i.e., piracy).
Google executives, on the other hand, don’t think it’s the company’s responsibility to thwart piracy. Plus, there’s a sentiment in the tech community that the MPAA’s requests amount to censorship. In fact, a Google attorney mentioned the big “C”:
“One disappointing part of this story is what this all means for the MPAA itself, an organization founded in part ‘to promote and defend the First Amendment and artists’ right to free expression. Why, then, is it trying to secretly censor the Internet?”
MPAA Spin Masters
Skilled in the ways of Hollywood public relations, an MPAA spokesperson dodged Google’s “censorship” slight with a tried-and-tested, deflect-then-blame maneuver, countering:
“Google’s effort to position itself as a defender of free speech is shameful. Freedom of speech should never be used as a shield for unlawful activities and the Internet is not a licence to steal. We will seek the assistance of any and all government agencies, whether federal, state or local, to protect the rights of all involved in creative activities.”
The Google MPAA feud won’t end until studio staffers cipher a new revenue model. Until then, the online piracy tug-of-war will continue.
Contact an Online Copyright Lawyer
Do you have an online copyright legal issue? Are you ready to speak with an Internet lawyer? If yes, get in touch with Kelly / Warner Law. A pioneer in the field of Internet law, we’ve successfully managed hundreds of copyright challenges for businesses and entrepreneurs. To learn more about our firm, start here.
Sure, your online copyright issues may not be as dramatic as the Google MPAA feud, but wouldn’t it be nice to get it resolved? Let’s start fixing today.
Google wins again! The online giant emerged victorious from their intellectual property scrap with the Author’s Guild. They battled over Google’s book digitization project, and the circuit court’s final decision was “fair use”. Did presiding judge Denny Crane Chin make the right call? Let’s quickly examine the suit.
A Short Summary Of The Google Book Scanning Lawsuit
The case of the book scanning behemoth began in 2005. Writers complained that their works were being copied and posted online for free and without permission. After a judge had denied a posse of authors’ class action certification, the Author’s Guild grabbed the conch and filed a lawsuit against Google on behalf of its members.
And, as the saying goes, they were off! Each clever legal maneuver was met with an equally cunning move. Litigation ensued. Years passed.
Denny Chin Must Decide
After exhausting every possible option and argument, Judge Chin retired to consider the arguments. Was Google correct? Was its digital book project a huge benefit to society? Since the company made efforts to ensure that entire books didn’t find their way online, could it be considered an infringement? Or was the Author’s Guild correct in saying that Google was essentially stealing writers’ work for its own profit?
In the end, Chin sided with Big G. In his ruling, he reasoned that digitizing books is “transformative” and in theory could help to boost book sales, not impede them. Additionally, Chin opined, “In my view, Google Books provide significant public benefits. Indeed, all society benefits.”
The use of the word transformative is important when analyzing intellectual property cases as transformation is a crucial element of the fair use doctrine. Specifically, if a work is significantly altered in some way, it’s considered transformative, and, therefore, falls into the fair use category.
Needless to say, the Author’s Guild is none too pleased with the ruling and plans to appeal, arguing that Google’s project “exceeds the bounds of fair use.”
Fair Use and Online Intellectual Property
We don’t see a judge reversing this decision, though, since only snippets of the books are made available online. Moreover, the question of whether or not a search engine is liable for IP infringement for displaying informative “extracts” from a given webpage was already explored and answered in the seminal case Kelly v. Arriba Soft Corporation.
In brief, the issue at hand in Arriba was whether or not a search engine had the right to display low-quality thumbnails in its search results. In the end, courts ruled that low resolution images were fair use and allowable.
Snippets of a book could be considered the literary equivalent to a low-res thumbnail. So, if we follow the Arriba logic, it’s safe to say that Google will probably continue to come out on top – even at the appeals level.
Google’s new policy means it can use names and profile pictures in ads throughout its vast empire. Google will incorporate user feedback about products and services (star ratings, reviews and Google +1s, etc.), and the ads will feature images of people who used a given product or feature. In addition, any relevant Google Plus “endorsements” of anybody you are connected with in Google + will be seen in search results. For example, in the crudest terms, if Jack and Jill are Google + friends, and Jill “pluses” a particular brand of pail, Jack will see Jill’s pail “plus” if he does a search for “best pail.”
How Does Google’s Shared Endorsements Feature Affect Users?
The Shared Endorsements feature is perhaps not as evil as it could be. Google delivered a rundown of the new policy in clear, legalese-free language to its users, in which it stated that:
- Users’ social activity will only be shared with people whom they have friended on Google+.
- User names and images will only be used in advertisements for “liked” companies, services and websites, but never for products and services on which you never used the +1 feature.
- Users can always opt out and were given one month to do so.
- The information of users under age 18 will not be shared in public, including in advertisements.
Users who do choose to turn off the Shared Endorsements feature, including users under 18, can still see the user names and pictures of their friends in search engine results and advertisements. Opting out of Shared Endorsements will not affect how their names and photos are used in the Google Play store for apps, music and videos that they have liked. Opting out affects how information is used in ads.
Just when Google thought their antitrust worries had washed away with a wave of other campaign-year flotsam, the Federal Trade Commission has fired up the bat signal and are summoning the proverbial “A Team.” Their focus, once again, seems to be on the Khal of Search, Google.
A new marketing czar is now at the helm of the FTC. Moreover, judging from early reports, it seems the commission is focusing on the logistics of Google’s ad exchange program, instead of organic SERP results, like last time. Could these two variables result in a bad outcome for Google this go round?
The Google Antitrust Legal War
Google is no stranger to the antitrust litigation ring. The first unfair competition arrow was shot from the SS FTC in 2007. Back then, the commission concerned themselves with the tech company’s acquisition of a large online advertising firm, DoubleClick. Agents reviewed the structure and practices of each entity to determine if a marriage of the two companies would end up creating an unfair mega-corp. In the end, officials decided Google could buy DoubleClick because the purchase was “unlikely to substantially lessen competition.” At that point, the antitrust investigations were suspended.
Things were quiet for several years. Then in 2012, the FTC started breathing down Google’s back again. This time, the commission examined whether or not Google was unfairly promoting their holdings in search results. The case was closely watched, and in the end, a deal was reached. Google essentially walked away with a slap on the wrist; but public reaction to the 2012 Google antitrust decision was mixed.
A New Google Antitrust Investigation for 2013?
Just when Google and legal watchers thought the Google antitrust wars were over, word hit the wires that the nation’s consumer watchdog was sniffing around the search giant’s territory once again. According to reports, representatives from the FTC have supposedly been talking to online marketing industry people about Google’s advertising program. Specifically, parties questioned said they were asked about:
- How Google provided and served ads on their websites;
- Google’s advertising bidding process;
- Whether or not Google was offering below market prices to advertisers who agreed not to use any other online ad network.
The rumblings have begun, but at the time of this writing, the Federal Trade Commission has yet to file the appropriate paperwork to move forward with yet another Google antitrust investigation.
What do you think? Should Google be censured for antitrust activity? Or, did the tech company just do a really good job at building a stronger, faster business model? Let us know on Twitter.
Spin doctors expertly touted tendentious studies, but Google emerged the apparent victor from its U.S. antitrust investigation. Media outlets — both brawny and bitty — technology bloggers, pundits and pirates weighed in with their opinion. Questions abounded: Did Google get off lightly? Would the European Commission consider the FTC’s ruling in their ongoing investigation? Was it a pyrrhic victory? Opinions overflowed: The FTC Sucks! Anyone Who Thinks the FTC Sucks, Sucks! The Google Antitrust Ruling Was A Victory For The Free Market! The Google Antitrust Ruling Killed The Free Market!
Not wanting to be a wallflower at the Legal Punditry Ball, we’ve created a Reader’s Digest version of reactions to the Google antitrust outcome.
Time Magazine: Did Google’s Antitrust Victory Have To Do With Their Motto?
Assuming the role of philosopher, Time Magazine’s David Futrelle asked the question: “Did Google’s Promise to ‘Do No Evil’ Persuade the FTC to Do Nothing About Its Search Bias?” After summarizing the search giant’s slap on the wrist, Futrelle suggested that Google defined their own parameters during the investigation. He then argued that the FTC’s 404-questioning-fail will ultimately murder innovation – cyborg style.
Time sought opinions from several industry luminaries, Gizmodo’s resident Google Critic Scott Cleland being one. He listed an index of previous offenses and concluded that Google is the second coming of Darth Sidious.
Wall Street Journal: How Will This Affect The International Markets?
Ever concerned with market-changing international imbroglios, the Wall Street Journal questioned whether or not the FTC’s decision would sway European Commissioners currently conducting their own investigation into Google’s search practices. EU spokespeople assured the WSJ that the Federal Trade Commission’s ruling will not have any “direct implications” on their inquiry.
A lawyer in Brussels who works with Microsoft said the European Commissioner has “identified practices that could be deemed illegal, and which the FTC walked away from.” The Conclusion: Europeans seem more concerned with “search manipulation” than Americans – so invest accordingly one-percenters.
Wired: Let’s Apply Some Actual Logic, Shall We?
Doug Miller took a different approach than many of his peers by asking the question: Did the true consumers of Google – whom he believes are advertisers – lose out in the FTC Google ruling? Using Nathan Newman’s logic, Miller averred that the “search market” is a mirage since netizens do not pay for the service. He punctuated his thesis by highlighting Google’s dependency on Internet marketers – a whopping 96% of their revenue pie is advertising.
Miller argues that Google’s practices hurt the true consumers of search, online marketers, because “with no other viable alternative for search engine advertising, the prices spiral upward at alarming rates.” He reasons that Google does engage in monopolistic activity because the company uses proceeds from their advertising revenues to subsidize free-cost products – like email, Google Docs and Google Calendar – which creates an insurmountable barrier to entry in the industry.
The Washington Times: The Federal Government Is Always Bad! (Except This Time.)
“Overcharging and under-delivering,” contends Daniel Oliver of the Washington Times, is the only market environment that “traditional antitrust law” seeks to conquer. In other words, the only functioning purpose of monopoly busting regulations is to stop industry smothering companies from raising prices on consumers.
In his “government-be-bad” analysis, Miller assured readers that “their favorite search engine will continue to be designed by private industry, not by government.” To further his assertion via one-dimensional rhetoric, Miller reminds readers that Bing and Yahoo! exist – so no harm, no foul.
Reuters: Why Aren’t More People Talking About FRAND?
Nanny Neutral, Reuters, focused on the Fair, Reasonable and Non-Discriminatory Licensing Terms (FRAND) aspect of the Google antitrust investigation. Though most people are talking about the search element, the investigation involved a handful of other issues. Chief among those was Google’s tendency to speak idealistically while carrying a patent-troll stick. As part of the deal, the technology behemoth agreed to ease up on frivolous aspects of their patent litigation. Specifically, they agreed to “[not] aggressively seek injunctions against products from rival companies.”
Reuters explained that the FTC-Google agreement is not like a court decision in that it does not officially establish legal precedence, but urged the FTC to use it as a “template” for other patent cases. A rightly suspicious expert quoted in their article, however, believes the vague wording of the Google agreement clears the field for bellicose patent litigation.
The complex nature of “e-mmunication” presents new legal challenges for both public companies and private people. If care is not taken when crafting decrees, law books could fill with special interest statutes that ultimately injure consumers. It’s too early to tell if the FTC called this one correctly, but if Google emerges as the Craken of commercial search, remember this decision as the root legal cause.
Google has won another Internet trade secret legal battle. The online giant was embroiled in a legal tussle with both GoDaddy and The Academy of Motion Picture Arts and Sciences (a.k.a., the “Oscars” people). To be clear, neither GoDaddy nor AMPAS sued Google; instead, AMPAS filed a claim against GoDaddy over a cybersquatting/online intellectual property issue. Unexpectedly, the case ended up having a significant impact on Internet trade secret law.
Internet Trade Secret Showdown: The Academy of Motion Picture Arts and Sciences v. GoDaddy
You’ve probably seen GoDaddy “parked” sites before; they feature the infamous logo and ads. What you may not know, though, is that domain owners, who are enrolled in GoDaddy’s “CashParking” program, earn revenues off those ads. As such, domain parking has become a popular residual income stream for online marketers. Here’s the story of one.
The Story Of The Online Marketer Who Bought An “Oscar-Baity” URL?
To capitalize on online searches related to the annual Academy of Motion Picture Arts and Sciences Award Gala (a.k.a., “The Oscars”), one enterprising online marketer bought “oscarlist.com” and “oscarliveblogging.com.” During the Academy Awards seasons, owning those domains translated to significant residual revenues, via parked domain profits.
The Academy Doesn’t Like That Go Daddy “Profits” Off Their Name
When The Academy found out about the system, it wasn’t thrilled. The Oscar folks felt that the hosting company unfairly infringed on their online intellectual property rights by profiting off “parked” sites.
So how did Google get involved? Both GoDaddy and AMPAS were pointing fingers, saying that Google’s AdSense program is the real issue. AMPAS said it need to examine Google’s program to see if the company took precautions against intellectual property infringement, in addition to the revenue share calculations. GoDaddy, on the other hand, is tried to build an Anti-Cybersquatting Protection Act defense, arguing that Google is “solely responsible” for any inappropriate domain profit gain.
Despite the wishes of AMPAS and GoDaddy, Paul Grewal – a U.S. magistrate judge – ruled the Google discovery requests would be “burdensome” since the company routinely has to deal with third-party discovery demands. Specifically, the judge reasoned:
“AMPAS has not shown that the 4,000 pages of documents Google already produced does not provide the information it needs or why at least some of the additional discovery it wants was not obtained from GoDaddy or public sources.”
Bad Faith Intent To Profit In Cybersquatting Lawsuit
The crux of the AMPAS v. GoDaddy lawsuit is whether or not GoDaddy engaged in a program with a “bad faith intent to profit.” In online intellectual property cases, it’s usually not enough to say that someone is inappropriately using a questionable domain (though, there are exceptions). Plaintiffs in such cases need to prove that the defendant is somehow profiting off the alleged infringement.
There are many ways an attorney can argue profit loss, or potential profit loss, so it’s important to find a lawyer who has experience with Internet copyright litigation and Internet trade secret law.
If you’re 100% sure that the content on your website is unique and does not violate copyright laws, give yourself a pat on the back and breathe a sigh a relief. If you’re on the other side of the fence and wondering whether or not your content violates someone else’s copyright, keep reading — because it looks like DMCA takedown notices will play an even bigger role in your business pretty soon.
DMCA Takedown Notices Matter More Now
Google recently announced they will factor the number of valid DMCA takedowns associated with your site when ranking it. Meaning, your website ranking will take a hit for having valid DMCA complaints of copyright infringement against you in your website.
Google is doing this to reward websites whose content is unique and legitimate, and punish sites with content that infringes on someone else’s copyright.
How Many DMCA Takedown Notices Does Google Get?
Google says they now have enough data to factor in the number of legitimate DMCA takedowns they receive every day. As a matter of fact, Google says they are now receiving more DMCA takedown notices each day than they did for all of 2009, stating they received over 4.3 million URL takedown requests in just the past 30 days.
Recently, Google posted a list of over 30,000 domains for which they received takedown notices within the last 30 days. The total number of domains on Google’s list exceeds 5 million.
Is Your Domain One of Them?
Has your URL been blocked by your ISP because of a DMCA takedown notice? Did the person or company accusing you of copyright infringement have a legitimate reason to send your ISP a takedown notice? Or are you skeptical about the takedown notice being the work of a copyright troll looking to cause people grief?
No matter the situation, an attorney experienced in online copyright law and DMCA takedown notices can help you get your website back on its way to a higher ranking. A lawyer specializing in Internet law can assist you and your Internet business to formulate a strategy in order to keep copyright infringing content from making its way onto your site and what to do when another party files a DMCA takedown notice against you.
First the “Penguin” and “Panda” updates changed search results dramatically, and now there is the “Emanuel” update – a term coined by Search Engine Land, in honor of media agency executive (read: RIAA & MPAA mouth piece), Ari Emanuel. What will the new Google update accomplish? Technically, it will incorporate “copyright takedown requests” as a search factor, which will push file-sharing and BitTorrent sites down in the SERPs. Politically, it will appease the entertainment industry who has been whining about Google’s inaction when it comes to piracy.
How Will Google Be Incorporating The New Anti-Piracy Update?
In a three-paragraph statement, Amit Singhal, SVP, Engineering, posted on the company blog that Google “will begin taking into account a new signal in [their] rankings: the number of valid copyright removal notices we receive for any given site. Sites with high numbers of removal notices may appear lower in our results.” Singhal also explained that since Google “re-booted” their copyright removal procedures, they now have “much more data” and can as such incorporate the information into their algorithm.
What, Exactly, Does Google Mean By The Term “Valid”?
The word that jumps out when reading Google’s new anti-piracy update is “valid” — what do they mean by that? Are they talking about a valid complaint or a valid takedown request? After all, a valid takedown request simply means that all the proper paperwork was completed; but it doesn’t mean that the request is actually sound. Google acquiesces this fact in their announcement:
“Only copyright holders know if something is authorized, and only courts can decide if a copyright has been infringed; Google cannot determine whether a particular webpage does or does not violate copyright law.”
In other words, this update is a potential disaster in the making if the signal threshold is low. For example, what happens if Google receives 2 takedown requests for Flowershop A in week 1; now let’s assume that the two requests were sent in by rivals, Flowershops B and C. Will Flowershop A drop in the rankings until they can afford to hire an attorney to remedy the situation? Take it one step further and assume that the requests were sent in a week before Mother’s Day – the busiest flower day of the year – thus causing Flowershop A to drop in rankings during their most profitable window. Like I said, this update is a potential disaster in the making.
Of course, though, it’s important to point out that it’s never a good idea to compete via fake litigation. First of all, you run the risk of being counter-sued and losing a lot more than your attempt at gaming earned. Judges and juries don’t take kindly to those who use the justice system for personal gain. Moreover, if word of your deception leaks, you lose the trust of customers and therefore perhaps your business.
That being said, even if nobody tried to file a false DMCA takedown request, that doesn’t mean this new update will go off without a hitch. After all, just a few weeks ago, the Curiosity Mars landing was removed based on a faulty DMCA request.
Why An Anti-Piracy Search Update Now?
Google insists the impetus for adding an anti-piracy component to their algorithm is new data. But the street gospel is that Google’s sudden change of heart has more to do with the fact that they’re no longer just a search engine, but instead a content distribution company looking for partners — partners like the Recording industry Association or America and the Motion Picture Association of America.
Super-agent (and the inspiration for Ari Gold), Ari Emanuel, co-CEO of William Morris Endeavor, recently heckled the search-turned-content giant at an industry conference: “I don’t want them to censor results, but they have a bunch of smart guys there that can figure this stuff out….Look, Google can filter and does filter for child pornography. They do that already. So stealing is a bad thing, and child pornography is a bad thing.” Translation: if you want to get into the distribution game, you better start at least feigning disgust with piracy.
Like all Google updates, we won’t learn the true ramifications of this one for another few weeks when the data starts rolling in. At that time, analysts will be able to determine if sites that receive thousands of takedown requests (like filetube.com, isohunt.com and torrenthoud.com) will be the only ones affected, or if savvy competitors will be able to launch weak, but technically valid, search-foiling “DMCA attacks” against foes.
Just when you acclimated to .com, .net, .org and .edu, a slew of new generic top level domains (gTLD) are on their way. And judging by the suffix request proposals revealed at a recent Internet Corporation for Assigned Names and Numbers (ICANN) London workshop, the new additions could alter the way we surf the Web.
More Descriptive gTLDs On The Way
According to reports, domain name endings could become more descriptive. For example, instead of going to StephenKing.com, in a few years, you may navigate to StephenKing.author. The change is expected to further compartmentalize the Internet – a fact that is bound to bring up various censorship, privacy and civil rights issues.
A process years in the making, ICANN has worked through technical glitches associated with the process and are now accepting applications from larger Internet companies bidding to control suggested gTLD additions. To illustrate, Google is looking to take over “.lol,” “.google” and “.YouTube,” while Artemis, a data security firm, is looking to lock-down “.secure.” Nearly 2,000 proposals were submitted including .doctor, .research, .music and .bank.
Generic top-level domains for various hobby groups, nationalities and sports are also expected to be incorporated into the domain naming conventions.
When Are These Generic Top-Level Domain Changes Going To Happen?
Don’t expect a different Internet overnight. Judging from past ICANN projects and the sheer enormity of this one, the roll-out won’t occur on a public scale for another two to three years…and that is if all goes according to plan.
Officials still must deliberate over trademark issues, international hate-speech considerations, not to mention the logistics of administering additional gTLDs. Besides, law enforcement entities need time to consider and implement new procedures as it relates to national security.
That all said, expect domain dispute and procurement litigation to heat up over the next several months, as competing bidders fight to gain control of highly prized options like .web or .startup.
Should Startups Consider Bidding On One Of These New Generic Top Level Domains?
Speaking of startups, if you’re a brand-new company looking to join in on the gTLD bidding fun, you may want to slow your roll – unless, you have $200,000 lying around to spend on a proposal. (That’s right, just the proposal; you have to pay them to write a proposal; and there’s no guarantee your wish will be granted.) If a company’s proposal is approved, they will have to shell out approximately $25,000 to maintain the gTLD and commit to a 10-year contract. In laymen’s terms, let’s just say you could buy “onlinemarketing.web” through GoDaddy; instead of it costing $10 – $1000, it would cost $25,000 – and with a required 10-year commitment, it may not make sense for a startup to commit to such a hefty debt from the jump.
Social Media & Search Giant, Google, Escapes Unscathed In French Book Scanning Lawsuit
Oft-praised for their mantra, “Do No Evil,” Google has long billed itself as a kinder, gentler corporate giant. But time reveals all hypocrisies, and these days you’ll find a lot more people who believe the search-turned-social-media behemoth’s actual mantra is “do as I say, not as I do” — especially in France.
Despite public contention, however, Le Syndicat National de l’Edition and the SGDL Society of Authors have agreed to end litigation over Google’s scanning of copyright-protected books without permission. While this may appear to be good news, it brings up some very interesting questions about the rights of content creators in an increasingly “share-friendly” world.
Google’s Epic Book Scanning Plan
A while ago, Google began a global project that would bring “free knowledge” to the masses. The plan was to create digital copies of the world’s literary works.
As word of their book scanning initiative spread, people began to question the legality of scanning copyrighted books – and snippets of text — available online. Google maintained, however, that they were helping society as a whole and didn’t stop.
In fact, since they began the project, Google has developed several new useful scanning methods. As time went on, Google continued to scan — and make available — more and more material. Before long, several publishing companies, in France, came forward and began legal proceedings against Google for theft of copyrighted content.
International and Domestic Legalities of Book-Scanning and Digitization
According to Bill Echikson, a spokesman for Google, the search engine company is no longer facing legal action in France over scanning books. In fact, they have been working to improve their relationship with various French industry groups and regulators, with regards to copyrighted content. Google has also settled legal disputes with Hachette Livre unit of Lagardere SCA and La Martiniere Groupe.
Google’s project to scan as many books as possible has birthed many a copyright infringement lawsuit. On the bright side, the legal battle has sparked dialog between Google and publishers – which, hopefully, will only lead to clearer distinctions as to the nature of Google’s project and what they are doing to protect creators’ copyrights.
How will this affect US publishers? Quite a few are asking this question, but the answer is still unclear.
Just this year, Google lost a bid to dismiss claims brought forward by groups including the Author’s Guild and the American Society of Media Photographers. The lawsuits came about in 2004, after Google announced their plan to digitally scan books from public and university libraries. According to a court filing from February of this year, Google averred they had scanned more than 20 million books so far, with more to come.
If you create content online or in print, make sure you have a clear understanding of intellectual property law in the Unites States. After all, who wants the likes of Google – or other companies – lifting others’ content to pad their already fat wallets?
Bottom line: the more you know about IP law, the better decisions you can make when it comes to protecting your content.
Recently, a Stanford student, Jonathan Mayer, uncovered a snafu in the way Google handles cookies in Safari – and the disclosure could cost the search engine corporation a pretty penny. You see, Google told Safari users they were protected and didn’t need to opt-out of Google’s cookies. What Google forgot to mention, however, is a little-known loophole used to track users’ data and web surfing habits.
How The Cookie Loophole Bypasses Online Privacy Protections
Google Adwords operates a service called Double Click. In theory, only users who click on the advertisement and interact with it can be tracked by cookies. To get around this requirement, Double Click sent out invisible forms that made Safari believe the user was interacting with the ad. As a result, the user’s computer allowed cookies to track their data. When users asked if they could opt out, Google advised it wasn’t necessary since Safari protected against any advertisement misuse.
Will Google Have To Pay Up For Safari Online Privacy Breach
Always eager to levy fines, the Federal Trade Commission is expected to force Google to cough up a few million as punishment for the security breach.
Since Mayer noticed, and pointed out, that the cookies placed in his browser were specifically created to avoid the protections Safari had in place, the FTC will most likely use this as an example-making incident.
In other words, the commission has grown a reputation for being, as an anonymous source in Bloomberg news called it, “all bark and no bite” – and a substantial fine would signal that the FTC does, actually, mean business when it comes to online consumer privacy and protection.
The Future of Online Privacy In The United States
Google said that none of the cookies were intended to collect any personal information about the consumer. After careful review, the Federal Trade Commission is now faced with a difficult decision. If they choose to find the company guilty, Google could be forced to pay fines that total more than $10 million.
In the past, the FTC has tried a more diplomatic approach to e-privacy compliance. However, online privacy has become a popular topic; citizens are starting to voice their displeasure with the lack of online privacy laws; so in response, the FTC has vowed to start getting serious about online consumer privacy.
Judge Yvonne Rogers, United States District Court, for the Northern District of California, recently filed an opinion denying Google’s motion to dismiss a pending class action lawsuit. The case, Pimental v. Google, involves advertising practices Google used to promote Disco, a mass messaging service under the Google umbrella. The case began when the plaintiffs, Nicole Pimental and Jessica Franklin, filed a complaint alleging that Google violated the Telephone Consumer Protection Act, or TCPA.
What Is Disco?
Customers using Disco receive a group cell phone number. The members of the group register by submitting their numbers to Google; once the group has been formed, members may send group-wide messages by dialing the communal number. According to the complaint, as soon as the group’s creator registers the communal number, the entire group receives an automated message from Google. The message states: “Disco is a group texting service. Standard SMS rates may apply or chat for free w/our app… [link deleted].” The plaintiffs, who contend that the message is an automated advertisement, filed a class action lawsuit on behalf of any Disco users who received the introductory message.
The plaintiffs must prove four elements to establish a violation of the TCPA: First, the defendant made a call; second, the defendant used an automated dialer; third, the number the defendant called was registered to a cellular phone service; and fourth, the defendant did not have permission to make the call.
In the motion to dismiss, Google’s attorneys argued that the plaintiffs failed to show that Google used an automated dialer to send the messages.
What Constitutes An Automated Dialing System
The TCPA defines an automated dialing system as “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers.”
As the courts have interpreted the TCPA, a defendant may not use a machine that can either store or generate numbers to send unsolicited text messages. Courts focus on the nature of the machine, not the method used to send the messages or the way the defendant acquired the numbers.
Judge Rogers Ruling
In her opinion, Judge Rogers observed that other judges ruled that plaintiffs only need to accuse the defendant of harvesting numbers and automatically sending mass text messages. The mere accusation allows courts to infer that the defendant’s equipment is capable of randomly generating or storing numbers. Relying on those precedents, Judge Rogers concluded that the plaintiffs were entitled to a chance to present their case to a fact finder.
Google also argued that the text messages were non-commercial communications entitled to First Amendment protection. However, Judge Rogers noted that the plaintiffs averred in their complaint that the messages were commercial. As Google’s argument contradicted the facts alleged by the plaintiffs, it could not be resolved before trial.
What It All Means
This ruling does not mean the plaintiffs have won the lawsuit. The American justice system recognizes two fundamental issues: questions of law and questions of fact. In most cases, the jury determines the facts of the case, but the judge decides how the law applies. To prevail on a motion to dismiss, the defendant must argue that even if the jury believed all of the plaintiff’s allegations, the judge would be forced to rule in the defendant’s favor as a matter of law. In this case, Judge Rogers held that the plaintiffs had made allegations that, if the jury believed them, would establish that Google violated the law. As a result, the case could not be decided on a motion to dismiss, and the plaintiffs are now entitled to present their case to a jury.
It is rare, however, for a class action lawsuit to go to trial. Many corporations are willing to litigate individual lawsuits; even large verdicts represent only a small percentage of a national corporation’s annual budget.
In a class action suit, however, thousands or even millions of individual cases all ride on the same verdict. As a result, when a company goes to trial and loses a class action case, the damages often bankrupt the corporation. Due to the enormity of the risk and the high cost of protracted litigation, corporations typically settle once the court has certified the class and denied the company’s motion to dismiss. This allows the parties to avoid a costly trial by reaching a settlement that does not irreversibly destructive.