E-Commerce Law Week, Issue 531

Tech Giants Agree to Principles for Protecting Online Speech and Privacy

A group of 24 organizations -- including heavy hitters Yahoo!, Microsoft, and Google, as well as human rights groups and academics -- announced last month that they have agreed to Principles for "Protecting and Advancing Freedom of Expression and Privacy in Information and Communications Technologies."  Known as the "Global Network Initiative", these Principles and accompanying Implementation Guidelines are the results of an effort to figure out how Internet companies can continue operating in countries with repressive governments while respecting freedom of expression and privacy.  The Initiative will not satisfy the harshest critics of Internet companies that operate in China and other "Internet-restricting" nations.  Nor will it put an end to lawsuits against such companies based on alleged violation of American, European, or international law.  But it does set out a manageable method for Internet companies to continue doing business in repressive countries while striving to protect the rights of their users.  And, for companies that sign on, the Initiative should serve to lessen some of the criticism that has emanated from lawmakers in the United States and Europe in recent months.

Google Reaches Settlement with Authors, Publishers in Book Search Suit

Google announced late last month that it has reached a preliminary settlement in a copyright dispute stemming from its digitization of books for inclusion in its search services.  As we previously reported, The Authors Guild, the Association of American Publishers, and several individual authors and publishers alleged that Google violated the federal Copyright Act, 17 USC § 101 et seq., by using digital copies of copyrighted works in its Google Book Search program for commercial purposes without obtaining the copyright owners' consent.  For Google, the settlement follows what seems to be a strategy of avoiding final judicial decisions on its search and ad practices and thus prolonging legal uncertainty while it creates a "new normal" in users' expectations of what the Internet should offer.  This strategy has allowed the company to continue to profit from the sale of trademarked search terms, the aggregation of online news, and now the digitization of books, while making it difficult for those without deep pockets to risk following in the search giant's footsteps.

American Airlines Lets Another Trademarked Search Term Suit Fly, This Time Against Yahoo!

Three months after settling its trademarked search term suit against Google, American Airlines launched a nearly identical suit against Yahoo!  In a complaint filed in Texas in October, American Airlines alleges that, by selling airline industry competitors the right to display ads alongside web searches for terms such as "american airlines" and "aa.com," Yahoo! infringes American's trademarks.  The airline also claims that the text of the triggered ads sometimes displays American's trademarks, and that the "Sponsor Results" heading that Yahoo! uses to set off such ads from "natural" search results incorrectly leads consumers to believe that American Airlines sponsors such ads.  American claims direct, contributory, and vicarious trademark infringement, as well as false representation and dilution under the Lanham Act, several violations of Texas law, and tortious interference with contract.  The airline asks the court to enjoin Yahoo! from the sale or display of ads triggered by searches for American's trademarks, to direct Yahoo! to post "corrective advertising" on its website, and to award American restitution of all profits earned through the sale of its trademarks, plus treble damages and attorney fees.   As noted above, Google has made a practice of settling trademark and copyright suits after firmly establishing the relevant business practice, thereby avoiding decisive rulings on the legality of its ad practices.  Whether Yahoo! follows the same course remains to be seen.

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