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					                    Google‟s Gauntlets
                                  Roger Clarke
                Xamax Consultancy Pty Ltd, Canberra
      Visiting Professor in Cyberspace Law & Policy, U.N.S.W.
    Visiting Professor in Comp. Sci., A.N.U. & Uni. of Hong Kong

            http://www.anu.edu.au/people/Roger.Clarke/...
                 .../II/Google0605-Oslo {.html, .ppt}

             Institutt for rettsinformatikk, Oslo
                         19 May 2006

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                      Google‟s Gauntlets
                          Agenda
    •       Google‟s Context
             •  The Web             •   Google‟s Challenges
             •  Search-Engines           •  Competition Law
    •       Google‟s Business(es)        •  Copyright Law
             •  Content-Discovery        •  Consumer Law
                Services                    and Practice
             •  Content Services         •  Privacy Law
                                            and Practice
             •  Data about Users


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                                                                   File
                                                                Possessor

                                                                A: Upload
            The Web
            Process                                             Internet
                                                                Services
                                      B2: Request               Provider


                   Internet           B3: Response / Download
                   Access
                   Provider

                            B4:
                 B1:     Response /
               Request    Download

                  Requestor



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 Search
 Engine
Operation




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                  Google‟s Business(es)
              1. Content Discovery Services
     •      The Largest Coverage
     •      The Smartest Precedence Algorithm
     •      The Fastest, Simplest, Best? Search-Service
            (for normal people, not specialists)
     •      Multiple Constrained Searches
            (images, blogs, Froogle)
     •      Multiple Extension Services (Answers, Scholar)

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                     froo·gle (fru'gal) n. Smart shopping through Google   6
            Google‟s Business(es)
             2. Content Services




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            Google‟s Business(es)
             2. Content Services

            •   Google Earth
            •   Google Base
            •   Google Video
            •   ...

            •   Google News
            •   Google Library / Print


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                  Google‟s Business(es)
                   3. Data about Users
   “We are moving to a Google that knows more about you”
                                       - Google‟s CEO

     •      Round 1
             • Search-Terms
             • IP-address(es)
             • Click-Trail
             • Click-Throughs


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               Google‟s Business(es)
                3. Data about Users
   “We are moving to a Google that knows more about you”
                                       - Google‟s CEO

      Round 1                 Round 2
      • Search-Terms          • Google Accounts
      • IP-address(es)        • Personalizing
      • Click-Trail             Services
      • Click-Throughs        • Email-Address as
                                Username
                              • A Common Cookie
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   a new kind of
 webmail, built on
 the idea that you
should never have
to delete mail and
you should always
be able to find the
message you want




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                                                     v. 1 – October 2004

   Search Within Your Computer
      “A desktop search application that provides full
      text search over your email, files, music, photos,
      chats, Gmail, web pages that you've viewed, ...”
      (cf. Apple‟s Sherlock 1998, later Spotlight,
          and many third-party products for Wintel)
      But it allows people to scan their computers
      for information in the same way they use
      Google to search the web

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                                              http://desktop.google.com/about.html   13
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                                                         v. 3 – 9 Feb 2006

   Search Across [Your] Computers
      In order to share your indexed files between your
      computers, we securely transmit this content to
      Google Desktop servers located at Google

            cf. MS Passport data, centralised at Redmond WA




Copyright                                            http://desktop.google.com/...
                                                                                     14
2005-06                                              features.html#searchremote
                Google‟s Business(es)
                 3. Data about Users
   “We are moving to a Google that knows more about you”
                                       - Google‟s CEO

        Round 3           Round 4
        • GMail           • Google as Wireless IAP
        • Orkut             Today San Francisco
        • Desktop           Tomorrow the World?
        • Desktop v.3


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  Google as Wireless Internet Access Provider




  Acceptance of Google‟s tender confirmed 5 April 2006

Copyright           http://www.techworld.com/mobility/...
                                                            16
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        A. Google‟s Challenges to Competition
                        Law

       •    Market Dominance, but ...
              •   it‟s a new market, not yet matured
              •   is there evidence of illegality,
                  or of abuse of market power?
              •   are the competitors just slow and dull,
                  as with IBM and M$ before it?
       •    Google Library is not an exclusive, and
            does not appear to be an uncompetable
            initiative
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            B. Google‟s Challenges to Copyright
                           Law

       1. Normal Search-Engine Operations

             „Web operations ==>> implied licence‟

             cf. web-spider extraction, indexing, caching
             cf. widespread access to Google Cache

             Is Google‟s respect for exclusion clauses
             in robots.txt files sufficient defence?


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            B. Google‟s Challenges to Copyright
                           Law

       2. Trademarks

             Hire of „Adwords‟ enables advertisers to gain
             priority display-space when particular search-
             terms are nominated by users
             Trademarked terms are hired out as Adwords
             Some cases have already found against the
             practice, and clarification is awaited


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                   Google News Features
    •       News report consolidation service
    •       Offers links to news reports
    •       Customisation and Alert extensions
    •       Displays headline, source and hotlink,
            some text, and in some cases thumbnails,
            reproduced from Google‟s Cache
    •       Agence France Press (AFP) have sued
    •       AFP has gained support from the Paris-based
            World Association of Newspapers (WAN-Press)

Copyright
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              Re Thumbnails in Particular

•      U.S. District Judge A. Howard Matz ruled [17 Feb 06]
       that Perfect 10, an adult-oriented Web site featuring
       "beautiful natural women" in the nude, has shown
       that Google image search probably infringes
       copyright law "by creating and displaying thumbnail
       copies of its photographs”

•      "existing judicial precedents do not allow [even
       enormous public benefit] to trump" copyright law

                  http://news.com.com/...
Copyright         Nude-photo+site+wins+injunction+against+Google/...
                                                                       23
2005-06           2100-1030_3-6041724.html
            Google Print / Google Library




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                     Google Print
                 5 Partner-Libraries
             Bodleian, ..., Uni. of Michigan

     Categories of Work     Potentially Infringing Acts
     •   Out-of-Copyright   •   Scanning (image)
     •   Orphan             •   Extracting text (OCR)
     •   In-Copyright       •   Reproduction in the index
           •  Licensed      •   Serving of some from
           •  Unlicensed        Google Cache to users
                            •   Soft-Copy to the Library who
                                provided it

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            B. Google‟s Challenges to Copyright
                           Law

       3. Content Publishing

             Google News and Google Library

             Two actions in the U.S. District Court, NY:
              Authors Guild v. Google (Sep 2005)
              McGraw Hill & Ors v. Google (Oct 2005)

               „West Coast Code v. East Coast Code‟
                  is no longer just a catchphrase

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            B. Google‟s Challenges to Copyright
                           Law
      4. Copyright Expansionism
         Large corporations dependent on monopolies
         Scared by the digital era, they have requested
         and been granted „corporate welfare‟
         That is constraining socially on consumers,
         but also economically on innovators
         The U.S. is acting bilaterally and multi-
         laterally to extend copyright expansionism
         Many Governments are (willingly?) blind to
         the interests of their own countries
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    B. Google‟s Challenges to Copyright Law
       4. Copyright Expansionism - continued
       •  Opponents have included Barlow (1994),
          Samuelson (1996), Lessig (2000), Zittrain
          (2003) and recently Adelphi Charter (2005)
       •  Opponents now also include Google
       •  'Old big business' sits fatly, exploits its
          monopolies and arranges extensions to them
       •  'Newly Big Business' adapts quickly to new
          contexts, realises the potentials lurking inside
          them, and creates new monopolies that it can
          dominate from the outset
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    C. Google‟s Challenges to Consumer Law
                                    Terms:
   Consumer Benefits                •  non-negotiable
   •  Enormous                      •  non-transparent
   •  Gratis                        •  changeable at whim
   •  But there is consideration:   •  not version-managed
      acceptance of advertising,
                                    Recourse
      including intrusive
      attention-grabbing devices    •  all-but non-existent
      („blink‟, popups)
                                    No sign of recovery of lost
                                    consumer protections
                                    e.g. WSIS 2005 is vacuous
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          D. Google‟s Challenges to Privacy Law


      •     Privacy Threats from Search-Engines Generally
      •     Privacy Threats from Google especially
      •     The Regulatory Environment(s)
      •     Google‟s Privacy Undertakings




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             „Research Your Next Appointment‟
   •        Their Own Site(s)            •   Postings
   •        Event Programs                     •    email-lists
   •        Committee Minutes                  •    fora
   •        Court Reports                      •    blogs
   •        Media Reports                •   Logs (e.g. in court)
             •    as subject                   •    IAPs
             •    as commentator               •    ISPs
             •    as bystander                 •    own machine
             •    as                     •   „Little Black Books‟
                  reporter/contributor   •   Commercial Databases
                  /poet                  •   Dead Pages, from the
   •        Letters to the Editor            Wayback Machine
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                Privacy Threats from Open
                       Information

       Discoverability          Data Quality Problems
       •   Data                 •   Out-of-Date
       •   Associations         •   Incomplete
                                •   Acontextual
       Second-Round Effects     •   Inaccurate
       •  More Data Retention   •   Scurrilous
       •  More Data Capture     •   Spurious



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            Long-Term Email Risk Exposures
Both Parties‟s IAPs:               ISP Mail-Hosting / Webmail
•   IP-address(es) used,           •   long-term retention
    disclosing location, trail     Gmail Subscribers
•   authorised / unauthorised      •   targeted ads based on text
    disclosure, with/without           from senders, cf. consumer
    notification; data retention       behaviour manipulation
Mail-Recipient‟s ISP:              •   correlation with data
•   access to, use of traffic          from other services
•   access to, use of content      Senders to Gmail Addresses
•   authorised / unauthorised      •   examination of text
    disclosure, with/without       •   long-term retention
    notification                   •   long-term unauthorised
•   retention after download           disclosure, no notification
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                                EPIC on Gmail
•       No non-Subscribers Consent             •   Gmail is a privacy disaster
        to content extraction                  •   Google is attempting to
•       Unlimited data retention                   engage in indefinite data
•       Profiling across Google                    retention
        product line                           •   Google has publicly stated it
•       Harms expectation of privacy               will not discuss law
                                                   enforcement requests for
•       Insufficient privacy policy                personal information. So we
•       No data protection on sale of              have no idea how Google
        company or change of                       responds to law
        company policy                             enforcement, nor how many
        http://www.epic.org/privacy/gmail/fa       requests have been
        q.html, August 2004                        received
                                                   private email, 8 Dec 2005
    Copyright
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    2005-06
      What‟s Google?
•     Crawler, Search-Engine
•     Search Extensions:
       •   Cache / Archive
       •   Images
       •   News
       •   Scholar
       •   Definitions
       •   Site-Search
       •   ...
•     Content
       •   Library
       •   Print
       •   Earth
       •   ...
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      What‟s Google?                            QuickTime™ and a
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                                         are needed to see this picture.
•     Crawler, Search-Engine
•     Search Extensions:
       •   Cache / Archive         „something that knows
       •   Images                     a lot about you‟
       •   News                •    Logs of IP-Addresses,
       •   Scholar                  Search-Terms, Ad-Clicks
       •   Definitions
                               •    Long-term Cookie and ID
       •   Site-Search
                                    for all Google Services
       •   ...
                               •    Gmail:
•     Content
                                      •    all subscriber emails
       •   Library
                                      •    emails of all
       •   Print
                                           correspondents
       •   Earth
       •   ...                 •    Orkut Profile Data
                               •    Log of Content-Accesses
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                      Google‟s Gauntlets
                         Summary
    •       Google‟s Context
             •  The Web             •   Google‟s Challenges
             •  Search-Engines           •  Competition Law
    •       Google‟s Business(es)        •  Copyright Law
             •  Content-Discovery        •  Consumer Law
                Services                    and Practice
             •  Content Services         •  Privacy Law
                                            and Practice
             •  Data about Users


Copyright
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                    Google‟s Gauntlets
                                  Roger Clarke
                Xamax Consultancy Pty Ltd, Canberra
      Visiting Professor in Cyberspace Law & Policy, U.N.S.W.
    Visiting Professor in Comp. Sci., A.N.U. & Uni. of Hong Kong

            http://www.anu.edu.au/people/Roger.Clarke/...
                 .../II/Google0605-Oslo {.html, .ppt}

             Institutt for rettsinformatikk, Oslo
                         19 May 2006

                                                                    QuickTime™ and a
                               QuickTime™ and a
Copyright            TI FF (Uncompressed) decompressor    TIFF (Uncompressed) decompressor
                        are needed to see this picture.
                                                             are needed to see this picture.   39
2005-06

				
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