With thanks to Jim Gibson for initiating a thought-provoking discussion on cyberprof about this issue, apparently Google has just caught out rival search engine Bing in a sting operation for copying Google’s search results (by inserting fake search results in the manner of the Feist case and determining that Bing was copying the fake results). The interesting question is that if this were litigated, it’s not 100% clear what the cause of action might be. Story and image source here.
I just can’t spot the cause of action — I think I’m doomed to a “B” on this one. The only thing I that would seem to pass the laugh test would be big umbrella unfair competition / misappropriation — but that has to be a loser as well.
It’s a PR victory for Google though!
My students spotted this even before Jim flagged it. The suggestion from some in my Copyright Law class was that Bing is engaged in a form of fair use. (I teach fair use as a unit at the start of Copyright Law, rather than toward the middle or at the end, so students have fair use on their minds right away.) My reaction is mostly the same as Greg’s: I have a hard time seeing the claim here under any theory (though if Bing really did copy some data from Google, I’d like to know more about how the copying was accomplished). Copyright seems to be a particularly bad fit. For my students, this was an occasion for me to pull back on the reins a bit and point out that “fair use” is not an all-purpose IP flyswatter.
It’s not just fair use — if Bing is gathering the data from its client software and it fits in the EULA, then it’s exactly what they told users they’d do with the data.
See this explanation by HBS prof Ben Edelman:
http://ht.ly/3QlUM
Thanks a lot for such a nice information about duplication of search data. It should be punished who is doing the duplicate. It is really a great sting operation.
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