Prof. Panos Ipeirotis

Search and the New Economy

Intellectual Property on the Web

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,…

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

IP (Intellectual Property) Law

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

FancifulInherently Distinctive

Suggestive Mark

Arbitrary MarkDescriptive Mark

Generic MarkAspirin Genericized

????

Purpose of Trademarks

1. Protect legitimate rights of holders

2. …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

• 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,”

American Blinds v. Google

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.

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

1. Implied permission/Opt-out– If they tell us, we will remove the site

2. Linking, not hosting (for the most part)– Provide links not content (Cache? YouTube?)

3. Fair Use4. 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

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

Fair Use

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:

1. Making and showing thumbnails; and2. 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?

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

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

Questions?