[Volokh's] argument, fundamentally, is that when Google assembles search results, it is communicating with its readers, and making selections about what to communicate. In that way, it is the same as a print newspaper that prioritizes news on its front page; a guidebook that selects local attractions to highlight; or an online news aggregator like the Drudge Report.
Yes, the decisions by those kinds of organizations are made by people, while Google’s search results are made by computers that apply a supersecret algorithm, but who created that algorithm? Mr. Volokh asks.
“All these speakers must decide: Out of the thousands of possible items that could be included, which to include, and how to arrange those that are included?” Mr. Volokh writes. He adds that “all these exercises of editorial judgment are fully protected by the First Amendment.”
Interestingly, these First Amendment protections as a speaker are unrelated to the so-called safe harbor protections that shield Web sites like Google from responsibility for content that is created by others.
In that sense, Mr. Volokh said, “Google was getting the best of both worlds,” meaning the company could argue one position — it is a connector — when it comes to safe harbor, but another position — it is a publisher — when it comes to anticompetitive issues. To Mr. Volokh they are not mutually exclusive....
May 21, 2012
Google hires lawprof blogger Eugene Volokh to make the argument that Google search results are protected speech.
There's no pending case, but Google anticipates litigation... and regulation:
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18 comments:
Oh no he won't be blogging as much :(
If it is speech BY Google, are they claiming a copyright in their search results?
Et tu Eugene?
The Google entity has become an Empire that may be assasinated at the Forum in DC.
"If it is speech BY Google, are they claiming a copyright in their search results?"
You mean in the form in which the results appear on their results page?
Obviously, they can't claim a copyright in the writings of others which they find and present links to. Are you asking about that?
They are saying the results composed on a page after a search is something that they have a free speech right with respect to.
It's a separate question whether they'd argue copyright, but what would be the occasion for that? Someone else trying to appropriate the search page?
Be clear what your question is.
Maybe they should have hired Althouse, considering the preexisting relationship. Better looking too!
Thanks, Don, but Volokh is a great expert on these subject and quite brilliant and influential.
I'm a law writer in an artistic style, and I never ever ever take clients. I've been officially retired from the practice of law for 20+ years.
I take it Rick Santorum's about to sue the Hell out of Google.
Why am I not surprised?
[Volokh's] argument, fundamentally, is that when Google assembles search results, it is communicating with its readers, and making selections about what to communicate. In that way, it is the same as a print newspaper that prioritizes news on its front page; a guidebook that selects local attractions to highlight,...
THAT explains why quackery - as opposed to common sense - is always at the top of my search results for "alternative" medicine. It's mere hype for hype's sake - just like a newspaper - and worth no more or no less.
Thanks, Google!
THAT explains why quackery - as opposed to common sense - is always at the top of my search results for "alternative" medicine.
No, it's good SEO and sheer volume. There's a lot more stupid out there than there is common sense.
marybeth,
There's a lot more stupid out there than there is common sense.
And it doesn't strike me that Goog's doing anything to counter it.
Volokh is a great expert on these subject and quite brilliant and influential.
Just what nonsense peddler's need.
I hear they're going to argue that G's reproduction of photos is also free speech - you know, that subject which probably got my blog taken down.
I guess it's all about who you know,...
If I find a bunch of websites by running a google search, and I use those results by posting the various links to websites that I discovered only because of google, am I infringing on any claimed copyright in the results?
If they are claiming a speech right in the results, it follows that they would want to claim a property right in that speech.
I would agree that google does have protectible rights in this area, but I'm not sure that "speech" (or "expression") is the right answer.
If that's true, then I would think that would weaken their claim to safe harbor, when the materially contribute to, say, copyright infringement. Granted, this is not my specialty; but I don't think they should be able to have it both ways.
"If it is speech BY Google, are they claiming a copyright in their search results?"
I think this depends entirely on how an alternative search site arrives at their results:
--If they do it via their own unique algorithm and it happens to present the same results as Google, then that is okay.
--If it presents the same results as Google, because it uses Google to get the results and then strips out the sponsored links and puts the rest up as its own, then that would seem to be covered under copyright.
If it presents the same results as Google, because it uses Google to get the results and then strips out the sponsored links and puts the rest up as its own, then that would seem to be covered under copyright.
And if Althouse, for example, puts up a single link obtained from Google rather than running her own algorithm, is that single link covered? (setting aside the issue of fair use, etc.)
Again, this comes back to the fact that most businesses want to claim a property right in their own speech.
It's a user privacy issue. In the same way that there is a 1st Am right to keep private the list of books you check out at the library, there is that same right to keep private what you search for on Google or Yahoo.
Please Volokh is an incompetent, foreign born "law prof" egghead who knows nothing about the Constitution. He doesn't even know what a natural born Citizen is, much like another "law prof" I know.
Whatever you think about Google specifically, I don't think we want to start disqualifying certain types of speech based solely on the level of automation used to produce that speech. That way lies madness.
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