29 January 2008—The law is always playing catch-up with technology. But in the world of search-engine law, say some scholars, the courts have only begun to recognize the existence of a train leaving the station, let alone chase after it.
The legal gray zones of Internet search are vast, says James Grimmelmann of New York Law School. But they still can be outlined and defined.
In an article in the November 2007 issue of the Iowa Law Review , Grimmelmann writes that four broad areas of law—intellectual property, free speech, antitrust, and the openness of search algorithms—are still very much up for grabs in Internet search. And the next few years could see rulings, settlements, or legislation that will put some of the key legal cornerstones in place.
”The biggest undefined area is how far fair use extends in copyright,” Grimmelmann says, referring to the doctrine that allows for use of copyrighted materials for the purposes of education, public interest, or parody. How broadly Google or Yahoo or any of their peers can claim fair use to index Web sites, databases, books, and other copyrighted content, he says, is the essential issue. And the pending lawsuits filed against Google’s new Book Search engine are where Grimmelmann says the biggest legal aftershocks could originate.
Since 2004, Google has been digitally scanning and indexing books so they can be searched like Web pages, using Google Book Search. In the intervening four years, the search giant has scanned more than a million volumes from some of the world’s largest and most venerated libraries—such as the Harvard and Oxford libraries, and the New York Public Library. But in 2005, the Authors Guild filed a lawsuit, claiming copyright infringement, that seeks to stop Google. The case is still pending.
The Google Book Search lawsuit ”is the vastest stand-alone case out there,” says Grimmelmann. ”This one could shape copyright law for a generation.”
Frank Pasquale a professor at Seton Hall Law School, in South Orange, N.J., says the courts have also left search engines’ free-speech rights open to dispute: a newspaper, for instance, enjoys broad First Amendment protection in the United States. If courts began to treat Google and its kin as Internet-age newspapers, he says, then regulating their content—from ads to search results—would be difficult.
At the other extreme are credit-reporting agencies such as Experian, which, thanks to the Fair Credit Reporting Act, must disclose their information about a consumer upon request. If courts treated Google more like Experian than The New York Times, then search users and Web site proprietors would more readily be able to pry open a search engine’s hood and see how its relative rankings are calculated.
One case last year in North Carolina, Langdon v. Google , leaned more toward the newspaper model, giving Google, Yahoo, and MSN free-speech protection to reject any ads they deemed objectionable.
Pasquale says free speech is one of the two best legal shields that search engines now have. ”Google’s biggest weapons, in terms of not being regulated, are the First Amendment and trade secrecy,” he says. The latter comes into play when companies accuse Google or its peers of bias in search-engine rankings—and sue for more accountability to ensure that search results can’t be secretly bought or otherwise manipulated.
Says Grimmelmann: ”Transparency is not legally well defined, but it’s a great flash point for a lot of debates right now.”
The legal balance that needs to be struck, he says, is that ”a bad Google ranking can be the kiss of death for an online business, and there are concerns that search engines could just hide information on a given topic.” But the more transparent search algorithms are, he says, the more subject they are to shady third-party manipulations and search-engine optimization tricks.
However, says Eric Goldman of Santa Clara University School of Law, in California, ”The limited case law we’ve had in this area suggests there’s really not a whole lot to litigate over.... Newspapers make winners and losers all the time, and they showcase some companies and issues, and they marginalize others.”
The growing control Google, with 56 percent of all Internet searches in the United States as of December 2007, according to Nielsen, has inspired speculation about antitrust actions that U.S.—or foreign—legislators might bring, revisiting tales once told about Microsoft or Standard Oil. But Pasquale is doubtful that old-fashioned American monopoly-busting could rein in the company.
”The lesson is that the law can shape technology early on—in progressive ways or in ways that reflect social values,” says Seton Hall’s Pasquale. ”But if the law waits too long, then the thing it seeks to shape in fact shapes the law itself.”
This story was corrected on 30 January 2008.