Search and the New Economy Intellectual Property on the Web Prof. Panos Ipeirotis

Learning Objectives Intellectual property basics Understand what intellectual property is, and the purpose of having intellectual property laws Understand the basics of Copyrights Become familiar with the division of rights between creators and buyers under copyright law

What is Property?

True or False? “Anyone who puts material on the Web has made that material public, so I can copy text or artwork from a web site without getting permission.” “I copied the material from that publicly viewable website and I credit them, so I am ok” “I’m not breaking any copyright laws as long as I alter the digital information I copy.” I can bid on the keyword “geico” I can bid on the keyword “omaha steaks” I can create an ad with “geico” in the title I can create an ad with “omaha steaks” in the title I can post stock prices on my website

IP (Intellectual Property) Law What is intellectual property? “Creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce” (WIPO) Examples Scientific discoveries Engineering designs Pharmaceutical formulas Corporate names, slogans, logos Novels, poems, plays, films, musical works, drawings, paintings, photographs, sculptures, architectural designs,…

IP (Intellectual Property) Law Why do we have IP laws? To create incentives that maximize the value that society gets from its current and future intellectual property Some specific issues Trying to ensure that creators of IP get sufficient value from their creation Trying to facilitate future creation of IP Provide access to existing IP that may be built upon or used Provide appropriate protection for ‘derivative works’ Striking the right balance between creation and distribution System with less creation but widespread use vs. system with more creation and limited use

Focus Today Trademarks Copyright Data Patents Trade Secrets

Trademark Protection Promotes investment in brand names/logos Prevents consumer confusion v. E.g., you do not have 4 different “Tide” detergents

Trademark and Search? Is it a violation to use a trademark on your page? Is it a violation to bid on a trademark keyword?

Trademark Threats to Search

Clarify different characters of trademark keywords Fanciful Inherently Distinctive Suggestive Mark Generic Mark Aspirin  Genericized A fanciful / inherently distinctive trademark is prima facie registrable, and comprises an entirely invented or "fanciful" sign. For example, "Kodak" had no meaning before it was adopted and used as a trademark in relation to goods, whether photographic goods or otherwise. Invented marks are neologisms which will not previously have been found in any dictionary. An arbitrary trademark is usually a common word which is used in a meaningless context (e.g. "Apple" for computers). Such marks consist of words or images which have some dictionary meaning before being adopted as trademarks, but which are used in connection with products or services unrelated to that dictionary meaning. For example, Salty would be an arbitrary mark if it used in connection with telephones, e.g. Salty Telephones, as the term "salt" has no particular connection with such products. A suggestive trademark tends to indicate the nature, quality, or a characteristic of the products or services in relation to which it is used, but does not describe this characteristic, and requires imagination on the part of the consumer to identify the characteristic. Suggestive marks invoke the consumer’s perceptive imagination. An example of a suggestive mark is Blu-ray, a new technology of high-capacity data storage. A descriptive mark is a term with a dictionary meaning which is used in connection with products or services directly related to that meaning. An example might be Salty used in connection with saltine crackers or anchovies. Such terms are not registrable unless it can be shown that distinctive character has been established in the term through extensive use in the marketplace (see further below). Lektronic was famously refused protection by the USPTO on ground of being descriptive for electronic goods. A generic term is the common name for the products or services in connection with which it is used, such as "salt" when used in connection with sodium chloride. A generic term is not capable of serving the essential trademark function of distinguishing the products or services of a business from the products or services of other businesses, and therefore cannot be afforded any legal protection. This is because there has to be some term which may generally be used by anyone—including other manufacturers—to refer to a product without using some organization's proprietary trademark. Marks which become generic after losing distinctive character are known as genericized trademarks. Descriptive Mark ???? Arbitrary Mark

Purpose of Trademarks Protect legitimate rights of holders …without excluding legitimate interest uses

Example You drive on a highway, and you get hungry You see an “Exit” sign with a McDonald’s sign You get out of the highway

Example But it is a crappy restaurant instead You are so hungry that you just pay for the food You eat and you go

Is this a TradeMark violation? You knew that you did not get McDonald’s It was not a case of a “fake” item

“Initial Interest” Confusion Using a trademark to confuse and “lure” a consumer to a different vendor Consumer buys knowingly from second vendor but not without initial deception Illegal in several U.S. jurisdictions Judged on how likely consumers would be confused by competitor’s use of trademark

So do keywords confuse people?

Are we being diverted or informed? Is it an infringement to be placed next to a well-known, competing firm in the grocery store? Is it an infringement to be placed next to the ad of a competitor in a search engine?

Are we being diverted or informed? Is Ford violating Chevrolet’s trademark?

Is it pro or anti-competitive?

GEICO v. Google Eastern District of Virginia, August, 2005 GEICO’s survey says: 67.6% expected to reach GEICO via sp links 69.5% thought that the sponsored links were either for GEICO or affiliated with GEICO 20.1% said that to purchase insurance from GEICO, they should click on sponsored links.

GEICO v. Google The Court says “Serious doubts about survey accuracy as to actual users' experiences with and reactions to the Sponsored Links.” None of the control group was confused when Nike ads were displayed in response to a GEICO keyword. Use of the trademark as a keyword to bid, without more, not causing a likelihood of confusion.

GEICO v. Google Bottom Line: Advertisers can use “GEICO” keyword But cannot put “GEICO” in header or language of advertisements Google liable for ads with GEICO in text or header, so must affirmatively filter

But GEICO is a “Inherently Distinctive” What about trademarks that are “suggestive” (CopperTone) or “descriptive” (Omaha Steaks)? Should other companies be able to bid on these? Use the text in their ads?

American Blinds v. Google

American Blinds v. Google Settled in September 2007 “Google has not made and has not agreed to make any payment to (American Blinds & Wallpaper) of any kind whatsoever, whether in cash, credit or otherwise, and that Google has not agreed to change its trademark policies or any exception to how it applies its trademark policies,”

Focus Today Trademarks Copyright Data

Copyright and Search Crawling Linking Images Books ?????

Why do we have copyright?

What is Copyright? A form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works This protection is available to both published and unpublished works Concept of publication is important in copyright No Registration needed (although it can have benefits, such as statutory damages and attorney fees)

Purpose of Copyright The primary objective of copyright is not to reward the labor of authors, but "[t]o promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art. -- Justice Sandra Day O'Connor (Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 349(1991) Essentially a compromise between author and society: We will not copy freely author’s work, so that the work get published

What works are protected? “Original works of authorship" that are fixed in a tangible form of expression. (oral speech not; recorded lecture, yes) Copyrightable works include the following categories: literary works musical works, including any accompanying words dramatic works, including any accompanying music pantomimes and choreographic works pictorial, graphic, and sculptural works motion pictures and other audiovisual works sound recordings architectural works Categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works"

Copyright Theory Automatic (no paperwork or lawyers required) Lasts a long time (lifetime of author + 70 years or 95 years) To promote art and creativity Give strong controls over copying of works of art and science for a set term Provides incentive to create new works Balance with public dissemination and public access to information

Copyright Theory Copyright owner gets to control most “copying” of work Reproduction Distribution Derivative Work Translations, dramatizations, fictionalizations, motion picture versions, mutimedia products, condensations, abridgements, and forms in which work is ‘recast, transformed or adapted’ Public Display Public Performance Limited rights: No right to the underlying idea

OK, so what’s the Web has to do with this?

Copyright before the Web Before the web, only machines and businesses made copies

Everything you do online makes a copy

Everything you do online makes a copy

Copyright on the Web Every computer/device is a copy machine Every copy is potentially illegal Must either have permission or fair use If not, may face damages of up to $150,000 per work infringed Search engines copy, index, and distribute (copyrighted) information to millions of people Same for any automatic technique that collects information from the Web So, when Google index our site, we can also sue for copyright infringement?

Search engine strategies Dealing with ambiguous copyright on the Web Implied permission/Opt-out If they tell us, we will remove the site Linking, not hosting (for the most part) Provide links not content (Cache? YouTube?) Fair Use Blind hope

Implied permission/Opt-out Theory: Social Norms of Online Activity You made it publicly available You meant us to index it If not, opt-out via notification or robots.txt Opt-in would not work Covers crawling, caching, indexing and linking Opt-out respected and legally required under certain circumstances (DMCA Safe Harbors)

DMCA Highlights Exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances Limits ISP liability for simply transmitting information over the Internet. ISPs are expected to remove material from users' web sites that appears to constitute copyright infringement. Limits copyright infringement liability of schools and nonprofits On October 12, 1998, the U.S. Congress passed the Digital Millennium Copyright Act, ending many months of turbulent negotiations regarding its provisions. Two weeks later, on October 28th, President Clinton signed the Act into law. The Act is designed to implement the treaties signed in December 1996 at the World Intellectual Property Organization (WIPO) Geneva conference, but also contains additional provisions addressing related matters. As was the case with the 'No Electronic Theft' Act (1997), the bill was originally supported by the software and entertainment industries, and opposed by scientists, librarians, and academics. Highlights Generally: ·         Makes it a crime to circumvent anti-piracy measures built into most commercial software. ·         Outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software. ·         Does permit the cracking of copyright protection devices, however, to conduct encryption research, assess product interoperability, and test computer security systems. ·         Provides exemptions from anti-circumvention provisions for nonprofit libraries, archives, and educational institutions under certain circumstances. ·         In general, limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. ·         Service providers, however, are expected to remove material from users' web sites that appears to constitute copyright infringement. ·         Limits liability of nonprofit institutions of higher education -- when they serve as online service providers and under certain circumstances -- for copyright infringement by faculty members or graduate students. ·         Requires that "webcasters" pay licensing fees to record companies. ·         Requires that the Register of Copyrights, after consultation with relevant parties, submit to Congress recommendations regarding how to promote distance education through digital technologies while "maintaining an appropriate balance between the rights of copyright owners and the needs of users." ·         States explicitly that "[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use..."

Linking, not hosting Linking to copyrighted works generally not an infringement, unless You knew the link leads directly to infringing material; and You kept on linking Parallel: You borrow a car to your friend (OK). You knew that he was going to rob a bank (Not OK) Solution: Take links out of index upon complaint Do not link to material that knowingly is copyrighted material.

Fair Use Traditionally a defense for Loosely defined rights to reproduce copyrighted work Traditionally a defense for Personal non-commercial use VCR/Tivo/iPod Educational/First Amendment activity Teaching Parody/Criticism Transformative Uses Creative (remixing) Guidelines of thinking: complementary vs. substitute good (Not a legal doctrine though)

Copyright and Search Crawling Linking Images Books ?????

Image Search

Copyright Issues in Image Search Capturing image Making thumbnail Storing thumbnail Displaying thumbnails in response to keyword searches Providing Link to original picture page

Perfect 10 v. Google P10 sells “all natural” adult images on web Prevents crawling of its own site Third party sites copy and re-post images of P10 Google spiders images and puts thumbnail results in Google Image Search with links to original location P10 sends complaints for infringement, Google takes images out of index But P10 can’t keep up

Perfect 10 v. Google P10 sues Google for: Making and showing thumbnails; and Helping 3rd P sites infringe by linking to them and “displaying” them via frames Thumbnails erode P10’s product for cell phone pics Google can block sites Google can develop algorithm for detection

Perfect 10 v. Google Google says: We spider everything We can’t tell who’s infringing until you notify us of the specifics It’s a fair use to make an image directory Image search is important public resource Go sue the bad guys, not us

Perfect 10 v. Google Google lost initially, won appeal Court says: Thumbnails are fair use, because: Useful search tools Picture worth 1000 words No evidence of use for cell phones Linking is not illegal: Google didn’t know and couldn’t control 3rd-party sites (safe harbor) Main point: Thumbnail browsing is technology beneficial to society, Cannot be sacrificed for interests of a single private entity

Copyright and Search Crawling Linking Images Books ?????

Google Book Search

Author’s Guild v. Google

Author’s Guild v. Google Guild says: We sell books You borrowed books from the libraries and copied them without paying us Massive copyright infringement Google makes money (now indirectly, later directly?) We demand payment

Author’s Guild v. Google Google says: We had to copy books to make an index No one sees more than a few lines at a time We link to where you can buy/borrow Book search is important to public access This will help you sell books

Who’s information is it? “It's not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.” Nick Taylor, President, Author’s Guild

Who’s information is it? “A search engine for books will be revolutionary in its benefits. Obscurity is a far greater threat to authors than copyright infringement, or even outright piracy.” Tim O’Reilly, publisher, O’Reilly Media, Inc.

What do you think? Is Google liable of copyright infringement? They do not display the books But they make copies internally They do not make money from book search But they get traffic They will take down any book after a complaint But copyright does not work in an opt-out fashion "If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet?" The answer can be: "Because the material on the Internet, though copyrighted, is freely made available without charge, and the vast majority of it has no commercial value. The books, by contrast, are typically never made freely available by the copyright-owner, and do represent significant commercial value". Spinoff Google Book Search as a Non-profit “public library”

What do you think? Is Google liable of copyright infringement? They do not display the books, only snippets But they make copies internally What about reference books? (Recipes, travel guides?) But people can do that in a library already They do not make money from book search But they get traffic They will take down any book after a complaint But copyright does not work in an opt-out fashion "If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet?“ Because the material on the Internet, though copyrighted, is freely made available without charge, and the vast majority of it has no commercial value. The books, by contrast, are typically never made freely available by the copyright-owner, and do represent significant commercial value". Spinoff Google Book Search as a Non-profit “public library” Google is not contributing to culture. It's Google trying to supplant the publishers as the middleman business between authors and readers. They do not display the books But they make copies internally They do not make money from book search But they get traffic They will take down any book after a complaint But copyright does not work in an opt-out fashion "If it is illegal to do that with 20,000,000 books, then why is it legal to do it with the Internet?" The answer can be: "Because the material on the Internet, though copyrighted, is freely made available without charge, and the vast majority of it has no commercial value. The books, by contrast, are typically never made freely available by the copyright-owner, and do represent significant commercial value". Spinoff Google Book Search as a Non-profit “public library”

Focus Today Trademarks Copyright Data

Raw Data Can you copy the white pages and republish? Can you copy flight prices from Expedia, etc and republish? Can you copy TripAdvisor’s database of hotels and reviews? Can you copy eBay’s auctions and replicate?

Raw information not protected Copyright does not protect raw data Copyright covers only database as a whole Database needs to have “minimum creativity” Individual, data entries not protected Decided at the Supreme Courte level Feist case (http://www.bitlaw.com/copyright/database.html) No doctrine of “sweat of brow” EU directive more protecting prohibition on extracting information vs. duplication no prohibition on independent development The National Basketball Association v. Motorola, Inc. (2nd Cir. 1997). In this case, the Second Circuit found that statistics from an NBA game are facts, and therefore are not subject to copyright law. The Second Circuit also held that certain New York misappropriation laws were preempted by the Copyright Act. Specifically, the Court analyzed the "hot news" misappropriate common law rights in light of the 1976 amendments to the Copyright Act. Under the preemption provisions of that Act, only a narrow "hot news" misappropriate right remained. Therefore, the claims by the NBA against Motorola which involved transmitting live information about NBA games to pagers were dismissed. Substitute Amendment to Title II of HR 1858. Re: Prohibition against pirating real time market information databases. Date: July 21, 1999. Source: House Commerce Committee. This document was created by Tech Law Journal by scanning a paper copy, and converting into HTML. Editor's Note: this substitute amendment, and HR 1858 as amended, were both adopted by the House Commerce Committee's Finance Subcommittee by unanimous voice vote on July 21, 1999. Bidder's Edge allowed visitors to search across multiple auction sites, including eBay. eBay sued Bidder's Edge, and in 2000, a judge granted an injunction barring Bidder's Edge from using an automated system to search eBay on the grounds that it could slow the site. In 2001, Bidder's Edge settled the lawsuit with eBay and ceased operations.

Exemption: Real-Time Information Live Score Transmission: NBA vs. Motorola Score and stats are facts, not protected under copyright But by misappropriation claim, it is “hot news” (protected) Can transmit real time, but Cannot free-ride and profit from real-time transmission of others

How to protect a database? Ebay v. Bidder’s Edge: Trespass to computer Ebay won on grounds it could slow its site Electronic trespass Private entity can determine use of its property: Terms of Use Robots.txt Can you duplicate Amazon’s reviews? No, “creative” entries are copyrighted The National Basketball Association v. Motorola, Inc. (2nd Cir. 1997). In this case, the Second Circuit found that statistics from an NBA game are facts, and therefore are not subject to copyright law. The Second Circuit also held that certain New York misappropriation laws were preempted by the Copyright Act. Specifically, the Court analyzed the "hot news" misappropriate common law rights in light of the 1976 amendments to the Copyright Act. Under the preemption provisions of that Act, only a narrow "hot news" misappropriate right remained. Therefore, the claims by the NBA against Motorola which involved transmitting live information about NBA games to pagers were dismissed. Substitute Amendment to Title II of HR 1858. Re: Prohibition against pirating real time market information databases. Date: July 21, 1999. Source: House Commerce Committee. This document was created by Tech Law Journal by scanning a paper copy, and converting into HTML. Editor's Note: this substitute amendment, and HR 1858 as amended, were both adopted by the House Commerce Committee's Finance Subcommittee by unanimous voice vote on July 21, 1999. Bidder's Edge allowed visitors to search across multiple auction sites, including eBay. eBay sued Bidder's Edge, and in 2000, a judge granted an injunction barring Bidder's Edge from using an automated system to search eBay on the grounds that it could slow the site. In 2001, Bidder's Edge settled the lawsuit with eBay and ceased operations.

Questions?