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The FTC vs. Google: Who Are You Going to Call?

Late this past June, the Federal Trade Commission indicated it was launching an investigation into Google’s search engine technology and whether it pushes consumers to Google’s other services in a manner that is unfair to competition.

That also means that the FTC will not only be asking Google for records and information about the way it conducts its business, but it will also be asking for information from Google’s competitors (presumably who would provide information gleefully, except that they best be careful about celebrating too prematurely when they hand over information to the government), AND – here it comes – lots of companies who do business with Google: The host of third parties that are advertising and marketing networks, publishers, services, sponsors and, yes, even advertisers and agencies themselves.

What should you do? Well we’ve prepared a handy reference guide – What Should You Do When the FTC Calls About Google? to explain what the FTC can ask, to explain a few of the basic legal principles that apply to the “asking” the FTC may engage in and, frankly, a warning that you should be calling your lawyers—lawyers knowledgeable in this process—and protecting your interests. For you in-house lawyers out there, if you aren’t familiar with handling these inquiries and third-party requests, perhaps you should consider engaging the services of outside lawyers who know how to help. So whether you know you need help, before or after receiving an inquiry from the FTC – formal or informal – or if you aren’t sure, you might just want to call Joseph I. Rosenbaum, Rachel A. Rubin or the Rimon lawyer with whom you regularly work. We would be happy to help!

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Google and the FTC

An Open IMHO Letter to Google

Dear Google:

I’ve heard that the FTC has served you with a civil investigative demand in connection with your search-advertising business. They have raised the question as to whether your search engine technology pushes consumers to your other services in a manner that is unfair to your competition.

Now the FTC will try to determine if your market power is dominant because your practices are unfair and whether consumers are harmed, either directly or by not having competitive choices in the marketplace. Of course, the FTC has taken into account the complaints of your competitors. That is significant because I’ve heard a rumor that companies rarely try to incite trouble for their competitors at a regulatory agency.

So what happens next? Senior executives scramble. Lawyers do research and prepare briefs. Finance people set up cost centers and budgets. Evidence is gathered. Experts are retained. Distraction will be pervasive, invasive, consistent and persistent – until a settlement is reached. It won’t be pretty. It won’t be fun. It never is. But it’s here and at least the sword of Damocles is not hovering above. The issues will be confronted and the scope will be expanded – government always uses what it finds as a basis for going farther than originally planned (it’s great leverage). Then the serious business of trying to reach an accord will begin.

This isn’t about winning or losing. It’s about making a point. But it’s de facto, a recognition that you are thriving at what you do and have grown large and successful as a result. True, this action is probably not the recognition you prefer, but when the government wants everyone to believe you might be too big, too dominant, too much in control at the expense of competition and the detriment of consumers, the target is painted on you and it’s just a question of how much pain is inflicted before a settlement is reached.

Now I am not an economist or a market dominance expert, I’m a lawyer and blogger; but I thought I might help out by offering some observations you can bring to the attention of the FTC that might give the government (maybe others in the industry and even your competitors), pause to question whether their analysis, their efforts, their investigation, is correct or necessary. I’ve taken the liberty of including an attachment to this letter (see Attachment A) that provides some tips. Feel free to use them and tell your lawyers to back them up with lots of research and briefs – those are always impressive and useful.

Sincerely,

Joe Rosenbaum at Legal Bytes.

P.S. If your people end up spending hours, days and months with government regulators, working through lunches, late nights pouring over documents, huddled around conference tables, it may give you an opportunity to point the officials to their next target. You know who.

P.P.S. Feel free to use these and other quotes from the FTC if you like:

“And, as the information industry is still emerging, quite dynamic, and not yet well understood, plausible efficiency benefits should, perhaps, weigh heavily in the balance against asserted risks of decreased competition, especially when the technology is changing so fast that adverse effects on competition are likely to be transitory.”

“Antitrust and Technology: What’s On The Horizon?” Prepared Remarks of Federal Trade Commissioner Christine A. Varney, before the American Society of Association Executives, Legal Symposium, Washington, D.C., October 6, 1995

“A less confrontational approach suggests that because of the robust pace of innovation in high-tech industries, government should not intervene ‘unless certain that doing so will benefit consumers and the economy.’ (See, Priest, The Law and Economics of U.S. v. Microsoft, AEI Newsletter, August 1998).” Antitrust Analysis in High-Tech Industries: A 19th Century Discipline Addresses 21st Century Problems, Prepared Remarks of Robert Pitofsky, Chairman, Federal Trade Commission, to the American Bar Association Section of Antitrust Law’s Antitrust Issues in High-Tech Industries Workshop, February 25-26, 1999, Scottsdale, Arizona

You really need to see Attachment “A” so if it isn’t already displayed, point whichever browser you are using and click the “Continue Reading” text on the left below.

Continue reading “Google and the FTC”

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I See Paris, I See France: Google’s Street View Draws French Fine

On December 20, 2010, a Legal Bytes blog entitled Look! Out the Window! It’s a Peeping Tom! No, It’s Google Street View noted the problems Google was facing as a result of a faux pas in connection with its Street View automobiles roaming the streets equipped with cameras. As we reported earlier, Google’s picture-capturing vehicles appear to have accidentally gathered data over unsecured Wi-Fi systems in more than one country and city around the globe – including France.

Although Google agreed to delete the Wi-Fi data collected accidentally and has apologized, if one picture is worth a thousand words, France has apparently decided that Google’s pictures were worth about €100,000. This is reportedly the highest fine imposed by the CNIL (the National Commission for Information Freedom – the French data-protection regulatory body) since it was given the authority to levy financial penalties in 2004. The financial sanctions were levied because Google’s activities were considered to be "unfair collection" of data under French law, data that Google was able to collect for economic advantage. The "accident" resulted from some "sniffing" programming code that ostensibly carelessly found its way into the equipment capturing Street View data in the cars as they roamed highways and byways.

While other countries are considering fines and investigations that are on-going, some countries (e.g., the United States) have apparently dropped the investigations or are not considering penalties at this time. This is not the last we will hear of location-based or geo-targeted information raising an uproar, as people "check in" and the surveillance society becomes closer to reality than we often care to admit. The law and regulation are not harmonized around the globe, and many regulators and laws don’t even adequately address the problem – often created because, like so many other issues in our digital world, some information is being shared voluntarily, some is not, and some is a blend.

As always, if you need advice and counsel about your own advertising and marketing efforts, or privacy and data protection guidance from legal representatives who deal with these issues – in the United States and around the globe – every day, feel free to call me, Joseph I. ("Joe") Rosenbaum, or any of the Rimon attorneys with whom you regularly work.

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Spanish Court Dismisses Copyright Action Against YouTube

In June, Legal Bytes reported [Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case]that a United States federal court ruled in favor of YouTube and Google in the billion-dollar case brought by Viacom on a summary judgment motion. Just last month, we again reported that Viacom had filed notice of its intention to appeal that ruling [Viacom Appeals Google/YouTube Ruling], and a companion article written by Joseph I. (“Joe”) Rosenbaum [Viacom Appeals YouTube Copyright Ruling] has been posted on the Media & Entertainment Newsletter of the International Law Office.

Now in Spain, the Spanish Federal Court sitting in Madrid has dismissed charges brought by the Spanish broadcasting company Telecinco (Gestevision Telecinco SA), alleging that YouTube was liable for copyright infringement resulting from users uploading content and material that infringed the copyright of others. Mediaset, the Italian company that is the majority shareholder of Telecinco, is also involved in a copyright infringement action involving such video uploads, although no ruling has yet issued in that case. The ruling from the Spanish Federal Court comes on the heels of a ruling at the end of last year in France that found Google guilty of copyright infringement, but in that case, books were being scanned and excerpts put online without first obtaining permission or consent from the copyright owner. That said, earlier this month, a court in Germany ruled against Google, holding it liable for videos that were subject to the copyright of others and uploaded on YouTube.

The Spanish court essentially agreed with YouTube’s argument that it is a content-hosting platform, not directly responsible for content uploaded or posted by others. Without appearing flippant, Legal Bytes notes that, similar to Viacom’s decision to appeal the ruling in the United States, everyone who is on the losing side of these battles is (or has indicated an intention of) appealing the ruling against them.

Need to understand user-generated content, uploading videos or other content, rights of authors, and creators of content, and understand them in multiple jurisdictions around the world?  Contact Joseph I. (“Joe”) Rosenbaum, or the Rimon attorney with whom you regularly work. We can help.

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Viacom Appeals YouTube Copyright Ruling

The U.S. Media & Entertainment Newsletter of the International Law Office (ILO) has published an adaptation of the original Legal Bytes posting by Joseph I. (“Joe”) Rosenbaum discussing the appeal by Viacom of the ruling in favor of YouTube and Google in the billion-dollar case brought by Viacom. You can download or view a copy of the ILO publication, "Viacom appeals Google/YouTube ruling", and you can view the original Legal Bytes posting, Viacom Appeals Google/YouTube Ruling.

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Viacom Appeals Google/YouTube Ruling

Just over a month ago, Legal Bytes reported [Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case] that a federal court ruled in favor of YouTube and Google in the billion-dollar case brought by Viacom on a summary judgment motion. The court decided YouTube is protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act (the “DMCA”).

We also told you that we haven’t heard the last of this case, since immediately after the ruling was announced, Michael Fricklas, Viacom Executive Vice President, General Counsel & Secretary, noted, “This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.”

Consistent with that announcement, Viacom has now filed its notice to appeal in the U.S. Court of Appeals for the Southern District of New York. Many legal scholars feel that in this case, the District Court opinion will be very persuasive; one never knows until the appellate court has rendered its decision. Stay tuned. If you did not read the original District Court decision, you can read and download it through the original posting on Legal Bytes: [Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case].

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Federal Court Awards YouTube Summary Judgment in Viacom Copyright Infringement Case

Yesterday, the federal court hearing the billion-dollar case brought by Viacom against YouTube and Google ruled in favor of Google and YouTube on a summary judgment motion, deciding that YouTube is protected against claims of copyright infringement by the safe harbor provisions of the Digital Millennium Copyright Act (the “DMCA”), since it promptly sought to comply with the DMCA by removing protected content when notified of it.

The federal court held that under the law, if service providers were required to try to determine what content is infringing, or if service providers were held liable because they know infringement is rampant in the industry, or that users routinely post infringing materials, it “would contravene the structure and operation of the DMCA.” Only Congress has the power to decide to alter or reallocate the burden of copyright protection from the rights holder (i.e., the copyright owner) to the service provider. In examining that question, the court stated that where such a huge volume of works are posted by others, the service provider “cannot by inspection determine whether the use has been licensed by the owner, or whether its posting” is a “fair use” of the material, or even whether its copyright owner or licensee objects to its posting. 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 . . . .” Under the DMCA, if one has no notice of infringement and innocently publishes infringing content, until knowledge is shown – by “take down” notice or otherwise – a passive service provider platform would generally not be liable for intellectual property infringement.

It’s unlikely you have heard the end of this lawsuit. In a statement posted yesterday by Michael Fricklas, Viacom Executive Vice President, General Counsel & Secretary, Viacom noted that, “This case has always been about whether intentional theft of copyrighted works is permitted under existing law and we always knew that the critical underlying issue would need to be addressed by courts at the appellate levels. Today’s decision accelerates our opportunity to do so.”

You can read and download the court’s entire decision right here.

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Court Orders Google to Turn Over Blogger Identity Information

Earlier this week, New York State Supreme Court Judge Joan Madden ordered Google to turn over account information about an anonymous blogger to model Liskula Cohen in order to enable her to pursue a claim of defamation. The blogger had used Google’s blogging service to create a blog entitled “Skanks in NYC,” and had posted pictures and references to the model that were anything but flattering, and which, she claimed, lost potential opportunities for her. When Ms. Cohen originally sought to find out who had posted the content, predictably Google resisted, maintaining that its privacy policy does not permit the disclosure of the blogger’s account information.

To put this in perspective, the protection of free speech—especially anonymous speech—is a concept in American jurisprudence and history that traces its roots to Thomas Payne’s pamphlet, Common Sense. First published in 1776, it anonymously challenged the authority of Great Britain in the New World and is widely regarded as the first work to openly ask for independence for the Colonies from Britain.

Since then, state courts have varied on just how wide those rights go and for what purposes protection is appropriate. Although I am hardly a First Amendment lawyer or a Constitutional scholar, the legal issue still seems simple. If the speaker—anonymous or not—is expressing ideas or an opinion or belief, he or she is more likely to enjoy protection. While there are limitations on freedom of expression (e.g., yelling “fire” in a crowded theater), political expression has typically enjoyed greater protection than “commercial” speech—one being fundamental to a society’s encouragement of the free flow of ideas, the other designed to promote a product, service or brand in a free market economy. On the other side of the spectrum and generally not protected, would be public expressions that are clearly and solely intended to hurt someone, where actual harm can be shown from intentional or malicious public expression or, as was determined by the New York court here, where an illegal act was or was likely to have been committed—in this case, defamation.

While it is difficult to pinpoint a single factor that will always favor protection, anonymity is a strong legal shield U.S. jurisprudence holds dear to protect individuals from the potential swords of those in power, or from anyone who might seek to stifle dissent or ideas that might be unpopular. For example, in 2005, a blogger who ranted against a politician, accusing him of “obvious mental deterioration,” was ultimately protected by the Delaware Supreme Court expressing concern over the potential “chilling effect” on anonymous speech. The blogger in this case was referring to a politician, and the court ruled that in order to justify revealing the identity of an anonymous blogger, the plaintiff must provide evidence sufficient to all the elements of the claim if the case were to go to trial. Because the court concluded no reasonable person would believe the blogger’s statements to be factual, no action for defamation could be sustained, and the court dismissed the case. You can read the Delaware Supreme Court’s decision in full right here, but clearly for bloggers, this represented a significant landmark and affirmation of the substantial protection afforded anonymous posting.

In a subsequent 2008 case, a Maryland Court of Appeals decision (Independent Newspapers, Inc. v. Zebulon J. Brodie) similarly concluded that anonymous posts should be protected, and set out an approach first detailed in a New Jersey case (Dendrite Int’l, Inc. v. John Doe No. 3) describing the steps judges should take in deciding whether to compel disclosure of anonymous online speakers in cases that come along in the future.

Unlike the previous cases, and potentially distinguishing this case, is the fact that the blogger here targeted Ms. Cohen intentionally, exclusively, and individually; and while the defendant argued the postings were just “trash talk” and only opinion, Judge Madden noted that if Ms. Cohen could prove the blogger’s statements were factually inaccurate, it would refute the argument that the posts were merely opinion and would support a legal claim of defamation.

As we have previously noted in Legal Bytes in articles describing the FTC’s efforts to regulate the blogosphere, and in presentations we have made, it is clear that online speech is coming under increased scrutiny, and that regulators and courts appear to nibbling away at the virtually complete immunity anonymous bloggers once seemed to enjoy, seeking to define the contours of what is or is not permissible conduct on the web. Does anyone remember the term “netiquette”?

For more information, or for assistance with issues like these or any social media, online, digital content, gaming or matters that meet at the crossroads of advertising, technology & media, look up Joseph I. Rosenbaum, send me an email, or contact the Rimon attorney with whom you regularly work. We are happy to help.

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Google To Launch ‘Interest-Based’ Advertising

Rumor has it that Google will be launching its much-publicized "interest-based advertising" in April, allowing advertisers to serve ads based on a user’s prior interactions (e.g., browsing the advertisers’ websites, tracking interests). Google will track categories of web pages that users visit in Google’s content network and if, for example, a user visits motion picture and film pages, Google may add them to a corresponding interest category that might be labeled "motion picture aficionado." As we understand it, Google will enable use of the DoubleClick DART cookie in advertising served on websites with AdSense for content advertising. Thus, when a user browses an AdSense publishers’ site and views or clicks an ad, the user’s browser may have a cookie added.

For you loyal Legal Bytes readers, that means you should review your online terms of use, terms of service, privacy policies and online disclosures to be sure they cover this activity if it applies to your web presence, advertising and marketing activities. If you will need to and you don’t already take third-party ad servers into account, you may have to amend these to do so. 

As you know, Legal Bytes cannot provide legal advice (you have to be a client for that). Nor could we possibly advise without knowing the specifics about you, your situation, your jurisdiction(s), or the facts that apply. But consider the following sample (which assumes only non-personally identifiable information is collected) that illustrates the type of language one might consider:

We or our advertisers use third parties to serve advertising on our website and web pages when you visit or browse, and some of them use cookies or other technology to collect information about your visit. This information may be used to improve the operation of our website and enhance your experience as a visitor and user, and also to serve advertising about goods and services that might be of interest to you. No personally identifiable information (e.g., name, address, email or phone number) is collected this way or in this process.

Of course, you can add links or contact information for those who want more information, and you may even direct them to the applicable Google web page,or any other third-party ad-serving network’s corresponding page to either get more information, or learn how to opt out of or disable cookies.

Now go call the Rimon lawyer you normally deal with for help or contact me (Joseph I. Rosenbaum). We put together and advise companies in connection with their terms of service, privacy policies, and disclosures, and their online, wireless and web presence, all the time. How can we help you?

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Google Inoculated Against Fraudulent Advertisers

The Communications Decency Act (CDA) appears to have immunized Google from liability associated with advertisements placed through its “AdWords” program by some allegedly fraudulent mobile service providers. Because the allegations did not claim that Google was an “information content provider” itself, Google could take advantage of the statutory immunity granted by the CDA. That said, the federal court in San Jose did note that the plaintiff claimed Google assists customers in picking keywords and drafting AdWords, and if the plaintiff can amend its complaint and substantiate the fact that those activities constitute providing or creating content, this case may take a different turn. Let’s see how the cookie crumbles.