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[ NNSquad ] Re: Bing Stealing Google Results? Or Users Giving Them Away? Does the Difference Matter?

On 2/3/2011 12:34 PM, Lauren Weinstein wrote:
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.

An alternative approach that might pass constitutional muster: Google could claim a "compilation copyright" on their search results _as a whole_. The question is whether the development of the underlying spelling-correction, search, and ranking algorithms constitutes the kind of originality in "selection and arrangement" necessary to a valid compilation copyright. (If it is not, it is conceivable that COngress could extend copyright law to include it, but doing that -- getting it through the sausage-making apparatus - without making "mere facts" copyrightable is fraught with perils of various sorts.

If Google (and other search engines and aggregators of various sorts) hold a valid compilation copyright, then they can sue Microsoft for misusing their copyrighted compilation. I don't think it matters whether M$ got the information by relaying their searches to Google, or through the automated process of a toolbar, or even by users voluntarily sharing their search results one search at a time.

If they are using more of Google's compilation than can be justified by "fair use", and had exposure to that compilation (which they manifestly did, having collected it via Bing toolbar), then they would be in violation of the copyright.

So, depending on you interpret "compilation copyright," it is possible that what M$ has done is not only unethical, but in fact unlawful. And Google is one of the few "persons" around with the resources to face down M$ in an IP legal battle.

[ It's complicated, especially given that (as a number of persons
have taken pains to tell me over the last few days) users have
"fair use" rights also, and those may include sharing their
searches with other entities.

    One question is, how far does Google want to push this?  It may
    be significant that this whole episode was announced in the "PR
    realm" (that is, blogs and such) rather than a legal one (e.g., a
    lawsuit).  Also, while Bing's toolbar is demonstrating
    particularly egregious behavior, many persons have concerns about
    the tracking and other behaviors of various non-Microsoft
    toolbars as well, which suggests that any actions could broaden
    out quickly beyond the scope of the immediate issue.

    With the federal government seemingly already hell-bent for some
    sort of (as far as I'm concerned, unworkable and unwise)
    "do-not-track" scheme, this whole area is something of a
    powder keg.

       -- Lauren Weinstein
          NNSquad Moderator ]