Google Goes One For Two This Week, But We May Be The Big Losers

Google is clearly a big winner as the result of a trial judge's decision to dismiss a suit brought to prohibit its use of trademarked words as search terms. But it also looks like a big loser as the result of a Belgian judge's ruling earlier this week that the search-engine company violated the law by publishing copyrighted content without permission on Google News. And because of the way search engines and the Internet work, each decision could make us users of the Web a loser in a different way.Both decisions reflect the increasing problems arising with the ownership of abstract information and concepts exemplified by such legal constructs as trademarks, copyrights and patents. If the name of a thing can be trademarked, for instance, does that mean the owner of the mark has the right to control every use made of that name? The judge in the Rescuecom case apparently doesn't think so. Judge Norman Mordue of U.S. District Court, northern district of New York, granted Google's motion to dismiss a suit by Rescuecom, which sued to keep Google from selling its trademark as a keyword that brings up advertising for Rescuecom's competitors.

A successful trademark suit must prove that misuse of mark causes confusion between commercial offerings in the marketplace: I probably would be liable to Apple, for instance, if I tried to sell a music player I called the iPad. Judge Mordue apparently didn't think much of Rescuecom's claims. He wrote, "Defendant's internal use of plaintiff's trademark trigger sponsored links is not a use of a trademark ... because there is no allegation that defendant places plaintiff's trademarks on any goods, containers, displays, or advertisements, or that its internal use is visible to the public."

Google had argued that selling trademarks as Ad Watch keywords was the equivalent of putting generic products next to brand-name goods on store shelves, or printing coupons for competing products at supermarket checkouts.

I'm comfortable with that as long as Google continues to present the results of such keyword hits as ads, appearing, as the court papers noted, above or to the right of the search results. But this is a slippery slope. What happens if I search for, say, Ford and I get back hits from Chevrolet.com that don't mention Ford. It may increase the value of my search to Google by putting money in its pocket, but it will decrease the value of my search to me, because it reduces its relevance. I have to think Google, one of the smartest companies on the planet, is smart enough to realize this as well. And the spirit of full disclosure requires me to state that I use Gmail and Google Reader daily and have no trouble whatsoever distinguishing between the relevant content and the advertising. This is undoubtedly the reason "paid search" has never caught on. A truly useful search engine has to be run by an honest broker. Google, I think has proved itself here. But I'm watching it just in case.

The other case is more troubling, because it involves businesses and institutions that are not nearly as smart as Google, and therefore far more dangerous.

Early last year, Copiepresse, a group of 18 French- and German-language publications, sued Google for publishing their copyrighted material without permission. On Tuesday a Belgian judge ruled for the publications, and ordered the infringing articles, pictures, and links removed. At the same time, however, he reduced a fine that had been set last September at 1 million euros a day to 25,000 euros a day.

Money, in fact, seems to be the issue in the case. Somewhere I read that the publishers pursued their case against Google because they felt insulted by the compensation they'd been offered for their content compared with Google's offers to other publishing groups.

It may be a good negotiating tactic, but it makes very bad law. I am told that copyright law in Europe is more restrictive than in the United States. But if you can't link to a story on a publication's Web site and summarize its content, then you're back to the owners of information dictating the terms of our knowledge of it, an idea that runs very much counter to the same principle of a free press these publications supposedly support. "Show me the money" is not exactly the moral high ground in this argument.

I don't know enough about the particulars of what Google published, but I've had at least one brush with the fame that comes from an appearance on the Google News home page and I don't think it violated anything except the enforced anonymity that seems to shroud most of my best work.

The European court ruling seems to come perilously close to articulating a copyright argument that prohibits the basic functioning of search engines on the Web. And the second-biggest losers in that scenario will be Web users, you and me, a public with no right to know. The only consolation in that idea is that the biggest losers will undoubtedly be the publishers that refused to let Google link to their content. By winning their suit they are, in effect, commiting virtual suicide in cyberspace. Once Google forgets about them, they will be gone and thoroughly forgotten.