Archive for the ‘Google’ Category

Google’s Latest Transparency Report See “Troubling” Uptick in Government Requests

Tuesday, June 19th, 2012

Google's logo in bright, primary colorsGoogle’s latest biannual Transparency Report discloses an increase in government requests for user data and take downs. In the last half of 2011, government agencies requested the removal of 6,192 items posted on Google sites and asked for information from 12,243 Google user accounts.

Google senior policy analyst Dorothy Chou blogged some analysis of the data in the report:

Unfortunately, what we’ve seen over the past couple years has been troubling, and today is no different. When we started releasing this data in 2010, we also added annotations with some of the more interesting stories behind the numbers. We noticed that government agencies from different countries would sometimes ask us to remove political content that our users had posted on our services. We hoped this was an aberration. But now we know it’s not.

Chou noted that it’s not just the countries you would expect asking for the takedowns.

Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn’t comply with either of these requests.

Google did, however, comply partially or fully with 42 percent of the “requests,” which includes court orders as well as more informal asks. The majority of requests related to criminal investigations.

Kudos to Google for publishing these reports and a wealth of well-organized underlying data (including lists, maps, raw data).


Amanda Simmons at the Reporters Committee for Freedom of the Press: Google report: Government agency requests for content removal and user data rise globally and in U.S.

“Star Trek” Law Enforcement at FTC?

Thursday, February 9th, 2012

Antitrust officials at the FTC are looking into Google. Background here and here.

Google, of course, is a big player in blogging, with its Blogger platform.

Now comes Reagan-era former FTC chairmen James C. Miller III and Daniel Oliver arguing in the Washington Examiner that against the FTC investigation, deriding it as “returning to its Star Trek law enforcement policies – that is, to boldly go where no agency has gone before.”

That’s a cheap shot. The FTC has to break new ground when monopolizers do. That would mean they are doing their job.

Miller and Oliver say that antitrust law “is for consumer welfare, not competitor welfare.” True. I totally agree with that. But Miller and Oliver go from there to a silly argument:

Has anyone heard consumers complaining about Google? We have not, probably because consumers are under no pressure to use Google. They do so because they get what they want from Google, and they get it for free.

Duh. So what? Consumers also don’t complain about predatory pricing – designed to drive out competitors. But consumers are sure hurt when competition eventually dries up.

I have no reason to think Google is engaging in any anti-competitive conduct. Time and time again, I see them on the anti-anti-competitive conduct side. But there’s no reason for the FTC not to look into it.

The best part of the op-ed is when Oliver and Miller disclose they are “advisers to Google,” and then immediately say, “but their thoughts and views are their own.”

Ha. Sure. Their arguments may still have merit regardless of their relationship to Google. But to lamely claim their opinions to be unfettered erases credibility in my book.

The real reason Google seems not to be a potential antitrust threat is that in the cyber world, today’s charging gorilla can quickly be hunched over wheezing (Microsoft, MySpace, and many others.)

But bellyaching about the FTC looking into it and doing their jobs is sorry work.

Unfounded Allayances for a Misarchitected Law

Tuesday, October 25th, 2011

Huge pile of building rubbleMisarchitected.
(Photo: EEJ)

Over at Technology & Marketing Law Blog, Eric Goldman has written that the just-enacted California Reader Privacy Act may impose a new burden on individual bloggers who are on the receiving end of subpoenas. Paul Alan Levy, a lawyer with Public Citizen, a leading public-interest law firm, doesn’t agree. Levy says that the phrase “commercial entity” in the bill could not be construed to cover individuals because, individuals can’t be “entities.”

In this post, I’m going to take issue with what Levy says, and I’m going to offer some things to bolster Goldman’s critique.

Let me note at the outset that Levy is a heavy-hitting litigator who fights the good fight. He’s on the right side of battle after battle, doing pro bono impact litigation that makes our world a better place. So, I’m certainly not at odds with Levy in the greater scheme of things. But I do think that Goldman points out a serious flaw in California’s new privacy law, one that is bad for bloggers, and one that’s worth dwelling on for a bit.

Also, I’m a California litigator. I’ve spent a lot of time puzzling over California statutes. I’ve come to believe that California statutory law needs some watchdogging. So I offer my comments in that vein.

Here’s Levy’s argument that the statute won’t apply to individual bloggers:

… Professor Goldman ignores the limiting impact of the word “entity.” An individual is not an entity; rather, an entity is defined by Black’s Law Dictionary as an organization whose identity is separate from its members.

First, while a dictionary can be helpful resource for readers stumbling across unfamiliar legal words, it is not, at least in my view, a particularly persuasive foundation for interpreting a statute. Regardless, however, I don’t think the definition that Levy cites excludes natural persons. If you look at the whole definition, it clearly says that an entity can have a separate legal existence from its members, but the definition doesn’t say that a natural person can’t be an entity.

At any rate, dictionary definitions are really beside the point. The fact is, there’s a plentitude of legal precedents considering “entity” to embrace an individual person. For instance, many statutory schemes explicitly define “entity” to embrace an individuals. One prominent example is the U.S. Bankruptcy Code. See, 11 U.S.C. § 101(14).

Moreover, courts have plainly used the word “entity” to refer to an individual person. In discussing what the word “individual” meant, for instance, New York’s high court held, “An individual is one entity, one distinct being, a single one, and when spoken of the human kind means one man or one woman.” People v. Doty, 35 Sickels 225, 1880 WL 12385 (N.Y. 1880).

In defining “sole proprietorship,” a D.C. court used the word “entity,” saying, “A sole proprietorship is an entity that is so identified with its owner that the business either must undergo a fundamental change or cease to exist upon the owner’s death or retirement.” Hunter Innovations Co. v. Travelers Indem. Co. of Connecticut, 605 F. Supp. 2d 170, 173 (D.D.C. 2009).

Levy makes other arguments, however:

The statute itself confirms this construction, in that it limits any disclosure (voluntary or compelled) to a “government entity,” but limits compelled disclosure to “any person, private entity, or government entity.”

This is a helpful argument, one which I find somewhat persuasive. But it’s not the end of the matter. The fact is, “person” under the law frequently includes such entities as corporations. Often – I would even say most of the time – when the law means an individual human being, and not things such as corporations, the law uses the term “natural person.” In fact, a neighboring section of the California Civil Code, Section 1798.3, says that “‘individual’ means a natural person” and “‘person’ means any natural person, corporation,partnership, limited liability company, firm, or association.” If “person” includes “corporation,” that arguably makes the term “private entity” redundant of “person,” except that ”person” might embrace a public corporation (i.e., a corporation with publicly traded shares), whereas, perhaps, “private entity” would not.

All of this going around in circles, of course, just illustrates that this statute is poorly drafted. It’s another home run by the folks in the California Legislature. I wish someone would come up with a ballot initiative to force the California Legislature to employ a huge army of well-paid staff to draft and analyze legislative language. It would be worth every penny. The alternative is half-baked text or the made-to-order work product of lobbyists. (Although, with the ACLU, EFF, and (ahem) Google lobbying for this, you’d think made-to-order language would have been pretty good.)

Okay, let’s go on to Levy’s next argument:

A similar understanding that an individual is not an entity is shown by the fact that “government entity” is defined to include any “state or local agency” or “any individual acting or purporting to act for or on behalf of a state or local agency.” If “government entity” included individuals, this last clause would not be needed[.]

Hmmm. I get exactly the opposite out of that. By including individuals within the term “government entity,” the legislature, it seems to me, shows that it understands individual persons to qualify as a kind of entity.

Levy’s bottom line:

So the individual blogger is plainly off the hook as a “commercial entity.” A corporation that blogs, yes. A partnership blogs, yes. But not an individual.

I very much disagree with the phrase “plainly off the hook.” I’d go with “arguably.” Levy makes a fine argument. But, in my mind, that’s all it is: an argument. Take it from me – a member of the California bar who has spent approximately eleventeen bazillion billable hours researching and briefing issues of California statutory interpretation: This is not an easily-disposed-of issue.

But while we are on the subject of phraseology, I note that Goldman’s word for describing the new statute is “misarchitected” – a word which, technically speaking, doesn’t seem to exist. That’s not a knock on Goldman. To the contrary, as I’ve pointed out before, I think it’s part of the job of a law professor to use big words and to even make up new words. Every once in a while, I slip a big, nonexistent word by law-review editors. And count me on board with this one. I’m already thinking about how I can stick misarchitected into one of my working manuscripts.

In the meantime, when it comes to the Reader Privacy Act, I simply do not find Levy’s allayances persuasive. Thus, I must offer the California Legislature my regretulations on a job not-super-well-done.

Later this week, I’ll explain my biggest problem with the Reader Privacy Act.

More from me:

Eric Goldman’s Notes from Law & Econ of Search and Ads

Friday, June 24th, 2011

Eric Goldman has posted his notes from the Google-sponsored conference “The Law and Economics of Search Engines and Online Advertising” at the George Mason University School of Law. It includes a lot of insight into Google search, how it works, and why Google make some of the choices it does in formulating search results.

UK Soccer Star Ryan Giggs Sues Twitter and Tweeters Over Super-Injunction

Monday, May 23rd, 2011
Ryan Griggs, soccer player, standing on field

UK soccer star and super-injunction taker-outer, Ryan Griggs (Photo: Allison Pasciuto, CC-BY 2.0)

A soccer player who is famous in the United Kingdom, Ryan Giggs, apparently obtained a “super-injunction” to force the press to not reveal his name in connection with ongoing litigation involving an extra-marital affair he allegedly had with UK reality-television star Imogen Thomas. He has now apparently sued Twitter and Twitter users for revealing his identity.

The so-called super-injunction is one that not only gags the press and others with regard to the sensitive subject matter (such as allegations of an extra-marital affair), but also prohibits the press from even reporting about the injunction itself, thus shielding the identity of the person who took out the super-injunciton.

As your author of Blog Law Blog, based in the United States, I am confident that the First Amendment to the U.S. Constitution protects my ability to identify the person. And regardless, free-speech sufficient to discuss the use and potential over-use of judicial power ought to be considered a universal human right.

I actually looked through several news stories looking for the athlete’s name. All the sites I read, all of which were UK-based, were very cheeky, refusing to name Griggs, but dropping lots of hints, implying that the reader must then know who it was.

I’m sorry, but for me, on this side of the pond, if it’s not David Beckham, then I’m not going to know who it is unless you give me a name.

I eventually was able to get Griggs’s name through Google’s auto-complete feature, by typing in “superinjunction footballer …”

And now Griggs is suing Twitter, which was apparently where his identity broke.

Good luck with that, buddy. You’ll need it.

Twitter, based in San Francisco, U.S.A., has not only the First Amendment protecting it, but also the super-safe-harbor of section 230.

And now, here’s my commentary on the law: The super-injunction is a rank abuse of judicial power. It’s especially disappointing, to me, since the United Kingdom is one of the few countries on Earth that places the sort of premium on free speech that the United States does.

Imogen Thomas, Griggs’s ex-squeeze, who has been accused of blackmail in this whole thing, had this to say in the UK’s Daily Mail, which I think shows quite nicely what is wrong with the super-injunction as a legal institution:

“Yet again my name and my reputation are being trashed while the man I had a relationship with is able to hide.

“What’s more, I can’t even defend myself because I have been gagged. Where’s the fairness in that? What about my reputation?

“If this is the way privacy injunctions are supposed to work then there’s something seriously wrong with the law.”

Don’t Get Too Excited About Your Company’s Social Media Debut Yet!

Friday, May 20th, 2011

Headshot of Michelle Sherman and social media logo

Michelle Sherman of law firm Sheppard Mullin blogs about social media law

Michelle Sherman, a lawyer with L.A.’s Sheppard Mullin, has a new blog post Sherman’s post asks the question:

Is Your Company’s Social Media Launch Ahead Of Its Compliance Program?

What a buzz kill, huh? This is why people don’t love lawyers. You’re all excited about your company’s social media debut, and then all of a sudden you remember, OH YEAH, I HAVE TO THINK ABOUT THE LAW!. And then you have to pay by the hour, and all of a sudden you are really grumpy.

But, of course, Michelle is right. Any business going into social media as a way to win customers and make money ought to learn something about the law before they do. There are a lot expensive mistakes you can make.

And why, you may ask, why has the law thrown up a bunch of hurdles that make for those potentially expensive mistakes? It’s because there are a lot of people who want to use social media to rip off customers. So, basically, the unscrupulous folks out there ruin it for everybody. Next time you’re grumpy about legal bills, pause for a moment to send some bad juju the way of the sleazes out there who are the reason so many laws exist.

Anyway, Michelle’s post contains a nice rundown of the FTC v. Twitter lawsuit (settlement recently finalized) and the FTC v. Google Buzz settlement.

Google’s “Realtime” Results Skimming Twitter

Monday, March 7th, 2011

On Saturday (March 5, 2011), I noticed for the first time a feature called “realtime results” coming up in response to a Google search query. The feature raises interesting legal questions because it appears to be re-publishing whole tweets from Twitter.

You can see what I saw in the window grab below.

window grab showing Google's realtime search results coming up in regular search query

Click on the image to see an expanded version. (Note that I removed my e-mail address from the upper-right, but the image is otherwise unretouched.)

This is different from what Google has done in the past with reproducing snippets of a page. They are now reproducing whole works, albeit small works that are 140 characters or fewer.

What Google is doing arguably goes beyond “search” and becomes just “skim”. Indeed, watching realtime results float by on Google might well constitute a final destination for many internet users. All the results I saw, by the way, were from Twitter.

Is this copyright infringement? Maybe. Arguably a phrase that is only 140 characters or less is not copyrightable. You could write a whole 50-page law-review article analyzing the copyrightability of tweets. The thing about a suit for copyright infringement is that it would need to be brought by the copyright owners, which are the tweeters, not Twitter. And that seems unlikely to happen.

Is this unfair competition? Maybe. That would be a cause of action that Twitter could possibly use. There’s another law-review article.

There’s also a doctrine known as “hot news misappropriation,” which is a quasi-intellectual-property/quasi-tort cause of action that is rarely used. This doctrine is often applied – more in theory than in litigation – to things like realtime stock quotes. Could Twitter sue for that? There’s another long law-review article you can write.

My short answer is, I don’t know. But Google’s realtime results do strike me as being a lot less “fair” than regular search results. This all continues to fit into Google’s pattern of act first and determine legality later. It’s the whole “better to ask for forgiveness than for permission” thing, of which examples are Google book search, Google street view, Google image search, viewable cached pages, and Google’s road testing of its self-driving car.

The Google Street View Case – What it Doesn’t Mean for Bloggers

Monday, January 3rd, 2011

A Google Street View car driving through the countryside. (Image: Google. Used without permission.)

A few weeks ago, Google lost a lawsuit over its Street View feature. The reporting about the case was generally off the mark, so let me try to clear things up.

In the federal lawsuit, Aaron and Christine Boring of Franklin Park, Pa. won $1 in damages against Google, Inc. for trespassing.

Press coverage (e.g., this not-very-well-written story) made it sound as if Google incurred liability by taking a picture of private property and displaying it on the internet. That’s not the case. The reason Google was liable for trespassing is because Google drove its Street View car onto private land, going up a private road that was marked with a “No Trespassing” sign.

In other words, the case doesn’t say it’s trespassing to take a picture of private property and display it on the internet. (Indeed it’s not.) What the case means is that it’s trespassing to trespass.

So, if you are a blogger, this case shouldn’t make you nervous about posting pictures of private property – unless those pictures serve as evidence of your having done something unlawful.

And that’s what Google did. By posting the pictures, they proved that they committed a civilly actionable trespass. It also would appear that Google violated Pennsylvania criminal trespass statute at 18 Pa. Cons. Stat. § 3503.

It was absurd for Google to fight this in court. They should have respected the law, and they should have respected private property rights. It’s too bad they only had to pay a dollar. I personally think a small measure of punitive damages would have been in order.

It’s another case of Google doing whatever Google gets ready to do – regardless of the law.

And they keep getting away with it.

Ontario Mayor Looking to Unmask Critical Blogger

Thursday, December 23rd, 2010

Francis Richardson, blog-bothered mayor of Meaford. (Image: Francis Richardson for Mayor, used without permission.)

The Sun Times of Owen Sound, Ontario reports that the town of Meaford, Ontario has obtained the identity of a person behind, an anonymously authored blog that was critical of the incumbent mayor during a recent election.

The mayor, Francis Richardson, managed to get re-elected despite the blog supposedly having interfered with the election.

The town of about 11,000 people was able to get the identity from IP addresses turned over by Google.

The town is still pressing Google for more information so it can get the identity of anonymous commenters.

Richardson wants to publicly reveal the blogger’s identity “for the main reason of having that kind of thing stopped.”

Richardson claims it wasn’t attacks on him that pushed the city to use legal process to find the blogger’s identity. It was, he says, the material critical of his staff.

“It was the attack on the staff that council responded to. It requires us to get very, very, very serious to get people to realize they can’t take those kinds of shots at our staff without the corporation doing something about it,” Richardson told the Sun Times.

The article doesn’t say what the blogger or commenters said that is allegedly civilly actionable. Supposedly a defamation lawsuit is in the offing.

Vintner vs. Venters

Tuesday, October 12th, 2010

Winemaker Charles Smith and K Vintners LLC has filed a libel suit against anonymous commenters to a post on wine blog The Gray Market Report. The post that pulled in the allegedly defamatory comments is Charles Smith is a wine cartoon. Really.

Taylor Eason has blogged about the lawsuit at

The Gray Market Report was not sued, nor the blogger W. Blake Gray, nor Google, the host via Blogger. Instead, it’s a suit targeting John Does 1-10. Google has been served with a subpoena to turn over identifying information.

Gray Market Report has published the complaint and some details in a post headlined Attention readers: Charles Smith may be suing you.

The complained of comments accuse Charles Smith of being a “promoter” and “marketing-whiz” and not the winemaking brains in the operation. There’s also accusations of verbal harassment of employees.

The statements are good ones for exploring the issue of fact/opinion dichotomy in libel law. They are all somewhat close to the line, and you can bet it will be an issue as to whether the statements are factual assertions capable of defamatory meaning or unactionable expressions of opinion.

Google’s About Face and Bloggers’ Stake in Net Neutrality

Monday, August 30th, 2010

“Net neutrality” means that internet traffic is all treated equally. On a non-neutral internet, some webpages will download faster if the host of those pages has paid a special fee to your internet service provider.

If you are a blogger, should you care about net neutrality? Yes, you should care about it dearly. It’s a complicated issue, involving complicated technology, complicated economics, and complicated industrial models. That’s all true. But it comes down to something quite simple. Right now, a lone blogger is on an equal footing with the New York Times in terms of the being able to deliver content to end-users across the internet. Without net neutrality, that could change.

What will happen to blog readership in a non-neutral world? Imagine you have a choice between reading a blog or reading news from a big media company. The blog downloads at a glacial pace. You’re waiting. And waiting. And waiting. Meanwhile, the big media company’s content goes ZIP! and it’s all there. Readership of traditional blogs will plummet.

The political picture on a postage stamp is this: Big telecom companies generally don’t like net neutrality, because they would like to charge for non-neutral carriage of data. Little guys without a lot of political clout like net neutrality. The one mega-sized corporate friend that net-neutrality supporters had was Google. That’s why Google made such big news when it announced recently that it had struck a deal with Verizon to support non-neutral carriage for wireless services and other tweaks on net-neutrality.

Learn about it:

In favor of net neutrality, read this very well-done post by Jeff Sayer: How the Death of Net Neutrality Effects You. Also good is this post on Gizmodo: Google Just Killed Net Neutrality

For the other side of the argument, there’s no better source than Google itself. Read Google’s announcement, Google’s explanation for why it is not a sell-out.

Techdirt Digs Up Cache Problem for Cash-for-Nuisance Suer Righthaven

Monday, August 23rd, 2010

Ooooh. Very interesting. Techdirt asks:

Could The Legality Of Google’s Cache Kill Righthaven’s Copyright Claims?

Two things I would add:

1. This is especially interesting since the Field v. Google case came out of the District of Nevada. That means it’s real precedent in federal court in Las Vegas.

2. The Field v. Google case was in my view wrongly decided. But not real surprising. Bad facts + silly plaintiff => bad reasoning + silly precedent. The Righthaven case may force the issue.

Righthaven Rainmaking

Friday, August 6th, 2010

Searching for news on Righthaven on Google a couple days ago, I was greeted with a keyword ad from the Las Vegas law firm of Lewis and Roca, who is looking for some of the ever-expanding multitude of Righthaven defendants to come on as clients. Lewis & Roca’s landing page says:

Lewis and Roca has represented defendants in a substantial number of the cases filed by Righthaven to date in settlement negotiations and litigation. Lewis and Roca has formed a team to handle these cases in an efficient and effective manner.
Google keyword ad for Lewis & Roca: "Need Info on Righthaven? ... We defend copyright infringement cases filed by Righthaven."

Righthaven defense work is turning into a business of its own.

Google Nabs EFF Lawyer Fred von Lohmann

Monday, July 12th, 2010

THR, Esq. reports that Google has grabbed star public-interest copyright lawyer Fred von Lohmann from the Electronic Frontier Foundation to join up as senior copyright counsel.

Previously, I linked to one of von Lohmann’s posts on the EFF Deep Links blog about how music bloggers can keep from getting into trouble with litigious record companies.

Google is usually on the public-interest side of copyright battles. Indeed, in my opinion, Google has done more than anyone else in contemporary times to push back against the unceasing expansion of copyright entitlements. But it’s a mistake to think that Google is a charitably minded do-gooder. Google pushes back against copyright because it’s usually in its interest to do so. But make no mistake, Google is ready to assert copyright in dubious ways when doing so is in itself interest. (See, e.g., the Google Books settlement, my takes here and here.)

In 2005, von Lohmann wrote a blog post for EFF in which he described his “conversion moment.” It was in 1994 when he read John Perry Barlow’s essay, The Economy of Idea, which includes this passage, quoted by von Lohmann: “The greatest constraint on your future liberties may come not from government but from corporate legal departments … ”

Google’s a fantastic company, and I congratulate von Lohman on his new job. There’s no shame in working for a for-profit company – I’ve done a lot of that myself. And there’s absolutely nothing wrong with moving from public-interest work to for-profit work. None at all. But von Lohmann is the latest in a string of public-interest-minded IP lawyers that have been hired by Google. And that gives me pause. They can’t all go. We still need great public-interest copyright lawyers. Now more than ever.

[Cross-posted from Pixelization.]

YouTube is Cleared of Mass Copyright Infringement Claims

Thursday, June 24th, 2010

Courthouse of the Southern District of New York in Manhattan (photo by EEJ)

YouTube has triumphed in a grand copyright battle against media companies and content owners led by Viacom. The case is important not just for YouTube, but for all websites with user-generated content, including blogs allowing automatically posted comments.

Judge Louis L. Stanton of the U.S. District Court for the Southern District of New York, granted Google’s motion for summary judgment against Viacom for all claims for direct and secondary copyright infringement. The opinion is available as an image-based pdf and in an html document format. Google, which owns YouTube, has posted the news of its victory on the Official Google Blog.

The Digital Millennium Copyright Act says that an internet service provider with “actual knowledge” of infringement loses the protection of the DMCA’s safe-harbor provisions. That makes the case seem pretty easy for Viacom. Everyone knows that YouTube hosts tons of infringing video clips. And of course Google knows it too. So doesn’t that mean that it’s a slam dunk and Viacom should win? Nope.

The court said, “Mere knowledge of prevalence of such activity in general is not enough.” An ISP’s immunity evaporates only when it has “knowledge of specific and identifiable infringements of particular individual items.”

The court explained what was at stake in the big picture: “To let knowledge of a generalized practice of infringement in the industry, or of a proclivity of users to post infringing materials, impose responsibility on service providers to discover which of their users’ postings infringe a copyright would contravene the structure and operation of the DMCA.”

That means that going forward, the Viacom and other content providers, if they want their content scrubbed from YouTube, will have to do the policing themselves, sending DMCA take-down notices, at which point it will be YouTube’s responsibility to remove it.

The court continued, “The DMCA is explicit: it shall not be construed to condition ‘safe harbor’ protection on ‘a service provider monitoring its service or affirmatively seeking facts indicating infringing activity….’ Indeed, the present case shows that the DMCA notification regime works efficiently: when Viacom over a period of months accumulated some 100,000 videos and then sent one mass take-down notice on February 2, 2007, by the next business day YouTube had removed virtually all of them.” (citations omitted)

Viacom has vowed to appeal.