Web Search Delivers New Legal Complexities
Privacy and legal concerns over search engines are multiplying as search technologies become more exact and more users place and seek out information online, experts told a Pike & Fischer teleconference Wed. Search engines compile profiles of what users look for and routinely release data on those searches divorced from personally identifiable information, said SearchEngineWatch.com Founder Danny Sullivan. The trouble comes in high-profile cases like the Dept. of Justice’s (DoJ) subpoena for Google searches (WID March 15 p7), where the demands are unreasonable, he said. The question becomes what will be sought next, Sullivan said.
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When it comes to trademark infringement, technology and laws governing its use are evolving in tandem, said American U. Law Prof. Walter Effross. “As of today, it remains a tangled area and there certainly is room for clarification,” he said, pointing to a handful of court cases brought by Playboy against various Web-based defendants. The rule of thumb is that a plaintiff must show that the defendant used a trademark for commercial reasons and in a way likely to confuse customers, he said.
Courts are also struggling with trademark dilution devaluation of famous marks regardless of infringement, Effross said. Congress has also taken up dilution at intellectual property advocates’ urging. The House passed the Trademark Dilution Revision Act (HR-683) last spring and it’s making its way through the Senate (WID Feb 6 p4).
Attorney Terence Ross said the climate for copyright is similar: “The law remains very unclear in copyright. We may be scratching and crawling toward the light but we have a ways to go,” he said. Ross highlighted recent cases like Field v. Google and Perfect 10 v. Google. In the first, the U.S. Dist. Court, San Jose found that Google didn’t violate copyright law by copying websites, storing the copies and transmitting them to Web users through its Google Cache application (WID Jan 27 p4). In the 2nd, the U.S. Dist. Court, L.A. granted a preliminary injunction against Google, saying portions of its image search feature probably violate copyright law (WID Feb 23 p2).
Search engines’ role as evidence sources is growing and cases are emerging, said former DoJ attorney Benjamin Vernia. “It’s surprising that there hasn’t been more along these lines until now,” he said. On the civil side, search engine evidence will be important in commercial and contract disputes, he said. In criminal law, the main targets will include sites that peddle contraband like child pornography, as well as terrorism cases, in which chat rooms play a prominent role. “But most law enforcement use of search engine information is going to come from a user’s own computer,” Vernia said. In addition to recent 2 murder cases, which hinged on search engine results, multiple child porn and exploitation cases have emerged, he said. While this is an emerging area of law, courts are using “well trodden paths” involving interpretation and scope of subpoena power, Vernia said.