The Google Way

Law.com

Margery Gordon
Corporate Counsel
06-25-2002

Faced with cease-and-desist letters from Scientologists, the search engine pulled the offending links -- and told all

Kulpreet Rana was caught between religion and commerce. This spring Rana, director of legal affairs at Google Inc., received several letters from the Church of Scientology International alleging copyright infringement. If Web surfers looked for information about the church using Google's search tools, the results brought up confidential documents. The church insisted that Google remove the links.

In typical Silicon Valley fashion, Rana consulted the Mountain View, Calif.-based company's engineers for a high-tech legal solution. They decided to remove the links to the confidential material to shield Google from legal trouble.

But Rana didn't want to leave it at that, and the engineers added another twist. Now, if a user finds one of the links that bothered the Scientologists, a message on Google.com encourages him to visit chillingeffects.org, a pro-First Amendment Web site founded by the Electronic Frontier Foundation and a handful of law school clinics. Posted on chillingeffects.org is the Scientologists' cease-and-desist letter to the search engine.

Rana found a Google-esque solution. "We wanted to think outside the box," says the lawyer, who joined the quirky, creative company two years ago as its first in-house lawyer.

Google-esque or not, it highlights one of the thorniest problems facing in-house lawyers for new-media companies: What rights do Web sites have when they use third-party content?

Most search engines respond to claims of copyright infringement simply by removing the contested links, as prescribed by the controversial Digital Millennium Copyright Act (DMCA) of 1998. "We're [all] caught in the middle,"

explains Rana, a 34-year-old intellectual property and technology attorney.

"We're simply providing access to publicly available information."

CONFIDENTIAL DOCUMENTS

The controversy started back in March, when Google received the first of several letters from a lawyer for the church. At issue were results for searches relating to Scientology, a religion combining spirituality and technology that was founded by L. Ron Hubbard in the 1950s and has attracted a celebrity following. The church's letter listed 85 copyrighted works, including secret, advanced teachings as well as photographs and texts drawn from the church's official publications. Alongside each entry was the Web address where the document could be found on www.xenu.net, a site calling itself "Operation Clambake" that is critical of Scientology.

It was not the first time Google had been singled out for alleged copyright infringement; Rana estimates that he fields several complaints each week. But the high-profile nature of the dispute with the Scientologists prompted him to devise a public response to those charges.

The dispute's effects aren't limited to Google. At least one rival search engine saw a spike in removal requests after Google's delisting of the anti-Scientology Web pages. Says Sharon Anolik, associate general counsel and chief privacy officer at Ask Jeeves Inc., based in Emeryville, Calif.: "We don't like the idea of having to remove sites from our results. And neither did Google. But the DMCA does require this."

TECHNOLOGY THE CULPRIT?

The church is hardly new to this arena. Scientology lawyer Helena Kobrin says her small Los Angeles-based firm, Moxon & Kobrin, has been trying to hold online service providers responsible for revealing unpublished copyrighted works since the mid-1990s. Technology has emboldened infringers, observes Kobrin: "It's easy to hide behind a computer." While she doesn't object to the church's legal notices being made public on chillingeffects.org, she does take offense at the site's name. "It implies that the First Amendment gives people some special right to infringe copyrights," says Kobrin, a Scientologist who has represented the church for 16 years.

She doesn't score points with free speech hard-liners. Robin Gross, a staff attorney for intellectual property at the Electronic Frontier Foundation, describes such cease-and-desist notices as "bully letters" or "legal torpedoes"

unlikely to hold up in court. But few recipients want to take their fights into the ring, she says, noting that her organization has been looking for the right case to put digital copyrights to the test.

Google's online presence is mushrooming -- it already claims to conduct more than 150 million searches a day by scanning more than 2 billion Web pages. That popularity should keep those DMCA requests coming. Undoubtedly, Google's top lawyer will have many more opportunities to think outside the box.

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