NNSquad - Network Neutrality Squad
[ NNSquad ] Bing Stealing Google Results? Or Users Giving Them Away? Does the Difference Matter?
Bing Stealing Google Results? Or Users Giving Them Away?
Does the Difference Matter?
http://lauren.vortex.com/archive/000810.html
Greetings. In "Google, Bing, and 'Darth Toolbar'" yesterday, I
attempted to dig down into the underlying issues related to Google's
accusations of Bing stealing Google search results.
( http://bit.ly/eNgRFB [Lauren's Blog] )
Judging from responses to that posting, and discussions I'm having in
other forums, it's obvious that confusion on this topic still reigns.
It's not at all surprising. This is one of the thornier Internet
legal/ethical quandaries that I've encountered in quite some time.
At the gut level, it seems evident that what Microsoft is doing with
their Bing toolbar is beyond the bounds of ethical propriety -- that
is, it stinks. Google puts a great deal of effort into discovery and
indexing of uncommon, "long tail" content, and I'll bet Bing's
apparent poaching of this data via the Bing toolbar is particularly
galling to Google engineers who've worked so hard to find that content
in the first place.
However, just because something is unethical it isn't necessarily
illegal -- don't we know it! So when we look at all this from a legal
standpoint (keeping in mind that I'm not a lawyer, and in fact only an
"armchair" ethicist) it's hard not to get mired down with a headache
in short order.
At the foundational level, an important question seems to be -- should
individual users be prohibited from sharing their search queries and
results?
As I suggested in yesterday's posting, an example could be someone who
chose to post their searches, and let's say the top few resulting
links, on a public "My Interesting Searches" Web page, where all
search engines could discover them.
Would this be illegal? Should it be? We're not talking about mass
copying of materials by that individual, only the sharing of some
aspects of their own specific search activities.
My guess is that in the U.S. at least, attempts to block such sharing
of individual search activity data would run into a First Amendment
brick wall in short order.
Microsoft would likely argue (in fact, they are asserting) that what
their Bing toolbar is doing is much the same thing -- enabling the
voluntary sharing of individual search data by individuals, via a
process of "looking over their shoulder" at their normal interactions
with Google.
It's certainly possible to question the "voluntary" part of this. I
suspect that most Bing toolbar users don't have a clue that their
non-Bing search activities are feeding to Bing, and many -- perhaps
most -- probably wouldn't be pleased if they were aware of such
behavior. But we know the story on disclosures. Most people don't
read them. If they read them, they often don't usually understand
them fully. Toolbars are "pre-checked" options on so many other
software installs now that it's easy to not even realize that you've
installed one, or more, in the first place.
And we've allowed this situation to fester for years, since it has
generally been to the benefit of the toolbar vendors, one way or
another. Technically at least, Microsoft's claim of voluntary use
might indeed (disgustingly, sadly) pass court muster.
In essence, Microsoft might claim that what they're doing is "merely"
the "crowdsourcing" of individually volunteered search usage data, and
that it's no more wrong for them to do this -- e.g., on free speech
grounds -- than for individuals to share their personal search
activity data with Bing (or anyone else for that matter) through other
means.
Would courts buy such a proposition? My assumption is that
Microsoft's lawyers looked at this area quite carefully in advance,
and that they felt they were on comfortable legal ground, ethical
considerations be damned.
I'm not sure that I see on obvious, effective, logical escape route
from this legal/ethical conflict that Microsoft has selfishly -- and I
might say rather fiendishly -- has foisted upon us.
The interactions and conflicts between free speech rights and
intellectual property rights are complex but delicate dances of
longstanding. There is much to lose for individuals and other
stakeholders on all sides from the outcomes. Microsoft has cleverly
pushed the envelope in this case, in such a way as to take advantage
of these perplexing issues for their own gain.
We could try pushing back. We could demand even simpler and more
prominent disclosures on toolbars, and perhaps that "cross-site" data
sharing like that of the Bing toolbar not be enabled by default at
installation. Perhaps lawsuits against Microsoft related to this area
might get some traction, but their longterm viability and possible
collateral effects seem problematic right now at least.
Unless we're willing to take a major and dangerous leap, by trying to
place what could be significant new prohibitions on individuals and
their rights to share information -- prohibitions that themselves
would have to be acceptable to courts -- it is not clear what other
measures are immediately available to force the cessation of
despicable behaviors like that of Microsoft's Bing toolbar.
Of course, we could simply appeal to Microsoft's own sense of ethics
and good corporate citizenship. Given all the negative PR that this
entire episode has generated for them, there's always a chance that
Microsoft will decide that it's in their own best interests to cease
the behaviors under discussion.
Miracles can happen.
Just don't hold your breath.
--Lauren--
Lauren Weinstein (lauren@vortex.com): http://www.vortex.com/lauren
Co-Founder: People For Internet Responsibility: http://www.pfir.org
Founder:
- Network Neutrality Squad: http://www.nnsquad.org
- Global Coalition for Transparent Internet Performance: http://www.gctip.org
- PRIVACY Forum: http://www.vortex.com
Member: ACM Committee on Computers and Public Policy
Blog: http://lauren.vortex.com
Twitter: https://twitter.com/laurenweinstein
Google Buzz: http://bit.ly/lauren-buzz
Quora: http://www.quora.com/Lauren-Weinstein
Tel: +1 (818) 225-2800 / Skype: vortex.com