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

[Barry Gold <BarryDGold@ca.rr.com>]

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 ]