Group wants search engines freed from policing copyrights

By Robert Mullins Silicon Valley/San Jose Business Journal

http://famulus.msnbc.com/famuluscom/bizjournal08-25-010259.asp?bizj=SJ

Aug. 25 --- Advocates for freedom of expression on the Internet issued a call this week to change a federal law that requires search engines to remove search results suspected of infringing on someone's copyright.

The federal Digital Millennium Copyright Act, the law that lets record companies go after music fans for sharing copyrighted songs online that they haven't paid for, also holds search engine companies liable for other copyright violations. If a Web page violates a copyright, a search engine can be forced to remove that page from its list of search results.

The liability issue was debated at the Search Engine Strategies Expo held in San Jose from Aug. 18 through 21, which drew about 2,500 people.

A legal advocate for freedom of expression on the Internet says the copyright holder should only go after the site that posts the infringing content.

"There is still an open question whether a search engine [is liable] that just mechanically generates results in response to a search query and some of those results happen to be pages that infringe copyright," says Wendy Seltzer, an attorney with the Electronic Frontier Foundation, of San Francisco.

"There's no reason the search engine would be liable for the copyright infringement."

But under the act, which took effect in 1998, the copyright holder can sue the search engine for damages if the search engine refuses to remove the link.

"I'm sure the search engines overall would like to be removed of that burden," says Danny Sullivan, editor of SearchEngineWatch.com, a Web site with news about the search engine business. "How are they going to determine every single thing and determine the copyright origin? It's a monstrous task."

SearchEngineWatch.com is a co-sponsor of the conference, which was produced by Jupitermedia, of New York City, an online research firm.

Google Inc., of Mountain View, was challenged over copyrighted material in 2002. Google runs the most popular search engine, with nearly 43 million unique visitors in March, the latest figures available from Nielsen/Net Ratings, an Internet audience research firm in Milpitas.

The Web search engine was asked by the Church of Scientology to remove several links in its search engine results to a Web site critical of the controversial church, claiming content on that site included quotes from Scientology writings that were copyrighted.

Google immediately removed the offending links, but after a storm of protest from people accusing the company of censorship, it developed a new policy. If a copyright holder sends Google a notice that search results include links to sites that violate a copyright, and if Google agrees there's an infringement, it will block those search results. But it also will refer searchers to ChillingEffects.org, which catalogs copyright infringement claims.

ChillingEffects, run by the Electronic Frontier Foundation, explains the copyright holder's claim, the response of the allegedly offending site, and a list of Web addresses of the suspected pirated content. The site lists 371 instances of search engines removing material from search results at the request of copyright holders.

Some copyright claims are specious, ChillingEffects says;

accusers, such as the Church of Scientology, are using copyright infringement to silence critics.

If search results are censored, people may no longer trust search engines, says attorney Ms. Seltzer.

"This can be dangerous because it can make the search results less comprehensive and reliable," she says. "People can be led to believe that either Google isn't a good search engine, or that everyone loves Scientology."

Publicly, search engines contacted for this story accept the restrictions of the present law.

"We evaluate those issues on a case-by-case basis. If someone tells us that a search result is copyrighted, we would remove it," says Diana Lee, a spokeswoman for Yahoo Inc., of Sunnyvale, which offers a search function.

Ms. Lee declines to comment on the copyright act, but says Yahoo currently uses Google to power its search service -- so if Google blocks a link, it would also be blocked on Yahoo.

Representatives for some other search engines -- Google and Ask Jeeves Inc., of Emeryville -- could not be reached for comment.

The search engine issue alone would not prompt a call for Congress to reopen the Digital Millennium Copyright Act, says Mr. Sullivan. However there have been calls for the DMCA to be revised for other reasons. If the act is reopened for those reasons, the search engine issue could also be addressed, Mr. Sullivan says.

"I think they would lobby for some sort of changes just because of the administrative problem of having to review this stuff and take it down," he says.

Copyright 2003 American City Business Journals Inc.

Mike Gormez

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