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Noam Cohen of the New York Times frames the paradox: “Is Google search an intermediary like the phone company — simply connecting people with the information they seek? Or is Google search a publisher, like a newspaper, which provides only the information that it sees fit and is protected by the First Amendment?”
The answer to both questions is yes. That’s how Google has managed to navigate through the treacherous rapids of liability for anticompetitive practices. Perhaps the easiest analogy is the telephone book. As a simple alphabetical list of addresses and phone numbers it links users to information about other users. Doesn’t look like there’s any creativity to protect, does it? Or does it? Because its format creates a unique database (people with names beginning with A come before people with names beginning with B) it can arguably be copyrighted.
Arguably. But not actually. In 1991 the US Supreme Court ruled that a phone directory was not copyrightable because it lacked the kind of creativity that would make it a unique work, like a novel. (See Feist v. Rural)
But that hasn’t deterred Google from testing the legal envelope. Cohen reports the company is developing arguments to support the contention that “Google search results are protected speech.” Some lower court rulings since the phone book case have given the company’s lawyers incentive to argue its position to the limits of the legal system.
Last fall Google’s chairman Eric E. Schmidt was put on the griddle before a Senate antitrust committee. He was asked “Is it possible for Google to be both an unbiased search engine and at the same time own a vast portfolio of Web-based products and services?”
If Google continues to answer yes to that double-edged question, some law may end up being made.
At least, US law. We haven’t even talked about foreign law, and there’s a whole bunch of nations that take a very dim view of Google’s practices. Whatever the Supreme Court decides, overseas courts may not take Yes for an answer.