ACE Friends:
Here are some legal perspectives on the Net and the Search engines we
use.
Jim Johnson is an ACE member, practicing Law in Washington, DC.
Tom Tate

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 The Web's Split Personality
                      by James H. Johnston
               [Legal Times, June 28, 1999 p. 35]

     Is the Web a library, shopping mall, or both?  Judges are
ruling on the question in litigation over Internet searches, but,
unfortunately, they are seeing the Internet through lenses
provided by commercial litigants.

     The Web is a library to users who seek information.  It is a
mall to commercial enterprises who litigate to protect their
intellectual property and to prevent unfair trade practices on
the Internet.  It is both of these to search engines who try to
keep their customers satisfied and make money in the process.

     The Supreme Court declared the Internet to be both library
and mall the first time it looked at it.  In Reno v. American
Civil Liberties Union, 117 S.Ct. 2329 (1997), the Court, ruling
on the Communications Decency Act, said:

          The Web is thus comparable, from the readers'
     viewpoint, to both a vast library including millions of
     readily available and indexed publications and a sprawling
     mall offering goods and services.

     The Web has neither a built-in index of publications nor a
store directory.  Search engines, which are commercial endeavors,
provide the function.  They have a symbiotic relationship with
the Web.  Because the Web is chaotic and disorganized, search
engines are needed to find things.  And, without search engines,
the Web would have to change its ways and be more structured.

     Search engines are not new to lawyers.  The computerized
legal research service, Lexis, employs a search engine.  Lexis
operates with a database of legal opinions, an index to the words
in the opinions, and a set of rules, or an algorithm, for how the
index should be searched.  Lexis trains users to search
comprehensively and efficiently.  The traditional Lexis search
will every find case that meets the user's search criteria.
Lawyers aren't going to pay for a search engine that only locates
60% of the cases.

     Unlike lawyers, Internet users usually are happy if they get
some relevant information rather than all relevant information.
For this reason, search engines typically include a relevancy-
ranking algorithm.  Words in the title of a Web page may be
deemed more relevant than those in the body, and the number of
times a word appears on a page may affect the relevancy ranking.
Lexis' "free style" search, popular with novice users, is a
relevancy-ranking algorithm.  In any event, both lawyer and
Internet users are trying to do the same thing with the
technology: find information.

     But the Web is a medium for commerce too.  Businesses market
-- and users buy -- goods over the Internet.  Buyers and sellers
need to find each other.  In this commercial world, no one cares
about learning where the Potala Palace is.  On the other hand,
"playboy" and "moviebuff" are fighting words that have prompted
litigation.  Law is invoked when money is involved.  And so, it
is business that goes to court over searches.

     The lawsuits have been concerned mainly with using
trademarks in "metatags" to skew the output from search engines.
A metatag is a heading of a Web page hidden from the user's
browser, but containing a description for search engines to use
to index the page.

     For example, in Niton Corp. v. Radiation Monitoring Devices,
Inc., 27 F. Supp. 2d 102, 104 (D. Mass. 1998), the defendant's
Web site used exact copies of the metatags in the plaintiff's Web
site.  The court found the defendant had done this in order to
cause its Web site to pop up in the results of Internet searches
for the plaintiff, and the court enjoined the practice.

     In Brookfield Communications, Inc. v. West Coast
Entertainment, Inc. (1999), defendant West Coast used "movie
buff" and "moviebuff" in the metatags of its Web pages.  But
"MovieBuff" was a registered trademark of Brookfield.  The 9th
Circuit's April 22 decision found no evidence that West Coast was
intentionally trying to skew search engine results and grab Web
traffic from Brookfield.

     Still, the court enjoined West Coast from using Brookfield's
trademark "moviebuff" in metatags, but allowed West Coast to
continue to use the two words "movie buff."

     While the opinions in cases such as these might make sense
in a shopping mall, they pose dangers in a library.  The
rationale in Brookfield lets a trademark owner enjoin anyone who
uses the trademark in a metatag.  A movie buff who wants to write
her own movie reviews for the Web cannot use "moviebuff" in the
metatags even if she has never heard of Brookfield and has no
intention of trading off its mark.  And, the author of a history
of Coca Cola cannot use "Coca Cola" and "Coke" in the metatags of
her Web pages to help search engines index the work.

     Of course, this concern over metatags may be an
overreaction.  The proprietary algorithms that search engines use
are constantly improved in order to give the user what he or she
wants.  Metatags are only one of the factors in relevancy ranking
algorithms.  Some search engines completely ignore metatags.

     Moreover, there is reason to doubt that litigation, like
Brookfield, achieves much.  In a recent test using several
different search engines, Brookfield's Web site was listed first
in response to searches for "moviebuff," yet sites with "movie
buff" were also listed.  West Coast's site did not appear.  Yet
when "movie buff" was the search term, West Coast's site was
listed first.  Brookfield's did not turn up.

     No search engine has been sued over its algorithms -- yet --
but such litigation isn't implausible.  Search engines have been
sued over the practice of keying banner advertisements to
trademarked words.

     Judges should approach the Internet search litigation with
care and not view the Web simply as a shopping mall in
cyberspace.  The search engine business is competitive and
market-driven.  If users don't get the results they want, they
will pick a different search engine.  Why should judges second-
guess the market?  Alternatively, if the Internet is like a
library, should judges be the ones to design the card catalog?


.

James H. Johnston, a solo practitioner in Washington, D.C., may
be contacted at [log in to unmask]


Reprinted with permission of Legal Times, 1730 M St., N.W.
Suite 802, Washington D.C.  20036.  Phone: 202-457-0686.
Copyright, Legal Times, 1999.