- The CCAAC then went on to recommend that “online transactions (including online auctions such as eBay) should be covered by the national statutory consumer guarantees in the same way as in-store transactions” (Recommendation 10.1, page 111).
- In the light of this recommendation, and the clear intention of the Australian Consumer Law to provide wide ranging protection for consumers, I consider that the purpose of provision will best be met by limiting auctions to physical auctions where the consumer does have the opportunity to inspect the goods before purchasing, analogous to in-store transactions.
- In the circumstances, I am not satisfied this arrangement was a sale by auction and therefore s. 54 and 55 of the Australian Consumer Law apply.
Online Auctions - Terms Unfair
See Malam v Graysonline, Rumbles Removals and Storage (General) [2012] NSWCTTT 197
Google's Top Lawyer: Some Apple Inventions are Commercially Essential, Should Be Made Into Standards
Apple CEO Tim Cook has said that he wants other companies to "invent their own stuff", and that Apple shouldn't be "inventor for the world".
Google General Counsel Kent Walker disagrees, and this month wrote a letter to the US Senate Judiciary Committee arguing that commercial inventions that impact "consumer welfare" should be just as important as technical patents.
See Here
Google General Counsel Kent Walker disagrees, and this month wrote a letter to the US Senate Judiciary Committee arguing that commercial inventions that impact "consumer welfare" should be just as important as technical patents.
See Here
e-book pricing
On Friday, the Department of Justice responded to the over 800 comments filed in its settlement with a group of publishers over e-book pricing. The Department responded as part of the Tunney Act proceeding for the settlement, while it is in the midst of litigating the same Complaint against Apple and publishers that did not settle.
The response can be found here: http://www.justice.gov/atr/cases/f285300/285315.pdf. The comments are posted online and can be found here: http://www.justice.gov/atr/cases/apple/index.html
Apple v. Samsung
The Apple v. Samsung patent case restarted in Federal Court of Australia today. See Sydney Morning Herald
U.S. Federal Circuit Responds to Supreme Court on Patent Eligibility
Reversing a summary judgment of patent
ineligibility under 35 U.S.C.§101, the Federal Circuit in a 2-1 decision
responded to the Supreme Court’s recent decision in
Prometheus v. Mayo with the caution that patent eligibility
must be decided by examining claims for specific, concrete applications
of the ideas behind an invention.
CLS Bank v. Alice Corp., Fed. Cir., No. 11-1301, 9 July 2012. Alice Corporation Pty Ltd is an Australian corporation.
According to the Court, if, after taking all of the claim recitations into consideration, it is not “manifestly evident” that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under Section 101.
Judge Prost dissented, writing that the majority failed to follow the Supreme Court’s Prometheus ruling by not inquiring whether the claims include an “inventive concept” and by devising its own patentable subject matter test.
The challenged patents in this case are
directed to a computerized trading platform for exchanging obligations
in which a trusted third party settles obligations between a first and
second party so as to eliminate “settlement risk.”
The district court granted a summary judgment motion that the claims
were not patent eligible because they are directed to an abstract idea.
On appeal the Federal Circuit reversed, concluding that the system,
method, and media claims are directed to practical
applications of an invention falling within the categories of patent
eligible subject matter defined by Section 101.
The “abstract ideas” test for patent eligibility has become a serious problem because of its “abstractness,” Judge Linn observed. He noted that several Supreme Court decisions have discussed the concept of “preemption” to elucidate the “abstract idea” exception to patent eligibility.
However, he added that Diamond v. Diehr, 450 U.S. 188 (1981), addressed claims containing a mathematical equation, and held that they only foreclosed the general use of the equation in conjunction with all of the other steps in the claimed process. Thus, the essential concern, according to the Court, is not preemption per se, but the extent to which preemption results in the foreclosure of innovation.
With respect to implementing inventions in
computer hardware or software, the court stated that the “mere
implementation” on a computer of an otherwise ineligible abstract idea
will not render the invention patent eligible, citing
Fort Props. Inc. v. Am. Master Lease LLC, 671 F.3d 1317 (Fed. Cir. 2011).
However, Judge Linn wrote that a machine limitation can render a method patent eligible where the machine imposes a meaningful limit on the scope of the claim and where it plays a significant part in permitting the claimed method to be performed, citing SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319 (Fed. Cir. 2010). A machine is insufficient, he added, if it functions solely as an obvious mechanism for permitting a solution to be achieved more quickly, i.e., through the utilization of a computer for performing calculations. A claim that is drawn to a specific way of doing something with a computer is likely to be patent eligible, Judge Linn explained, whereas a claim to nothing more than the idea of doing that thing on a computer may not. He added the following:
To read the Court’s opinion and the dissenting opinion, click here.
According to the Court, if, after taking all of the claim recitations into consideration, it is not “manifestly evident” that a claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under Section 101.
Judge Prost dissented, writing that the majority failed to follow the Supreme Court’s Prometheus ruling by not inquiring whether the claims include an “inventive concept” and by devising its own patentable subject matter test.
The “abstract ideas” test for patent eligibility has become a serious problem because of its “abstractness,” Judge Linn observed. He noted that several Supreme Court decisions have discussed the concept of “preemption” to elucidate the “abstract idea” exception to patent eligibility.
However, he added that Diamond v. Diehr, 450 U.S. 188 (1981), addressed claims containing a mathematical equation, and held that they only foreclosed the general use of the equation in conjunction with all of the other steps in the claimed process. Thus, the essential concern, according to the Court, is not preemption per se, but the extent to which preemption results in the foreclosure of innovation.
However, Judge Linn wrote that a machine limitation can render a method patent eligible where the machine imposes a meaningful limit on the scope of the claim and where it plays a significant part in permitting the claimed method to be performed, citing SiRF Tech., Inc. v. Int’l Trade Comm’n, 601 F.3d 1319 (Fed. Cir. 2010). A machine is insufficient, he added, if it functions solely as an obvious mechanism for permitting a solution to be achieved more quickly, i.e., through the utilization of a computer for performing calculations. A claim that is drawn to a specific way of doing something with a computer is likely to be patent eligible, Judge Linn explained, whereas a claim to nothing more than the idea of doing that thing on a computer may not. He added the following:
While the use of a machine in these limitations is less substantial or limiting than the industrial uses examined in
Diehr (curing rubber) or Alappat (a rasterizer), the
presence of these limitations prevents us from finding it manifestly
evident that the claims are patent ineligible under § 101. … In such
circumstances, we must leave the question of validity
to the other provisions of Title 35.
New gTLDs by Australian Companies
Here is my list of new gTLDs applied for by Australian companies, Universities and governments. There were a number of Victorian Universities who applied, plus the NSW Government and the Victorian Government. Commonwealth Bank made three applications, as did iSelect. A number will be contested (as marked in bold) below.
Amazon made over 70 applications for words in English, and a bunch more in non-Roman text. Google made about 100 applications, under the name Charleston Road Registry Inc.. Facebook did not make any applications.
- AFL
- AMP
- ANZ
- AUSPOST
- BEST
- BOND
- BOOK
- CANCERRESEARCH
- CBA
- CEO
- COMMBANK
- NETBANK
- COURSES
- FILM
- GLOBALX
- IINET
- KRED
- LATROBE
- COMPARE
- SELECT
- ISELECT
- CPA
- MELBOURNE
- MONASH
- NAB
- UBANK
- PHYSIO
- RMIT
- SALON
- SBS
- TAB
- TENNIS
- SEEK
- SELECT
- SEVEN
- STUDY
- SYDNEY
- WEBJET
- WOODSIDE
- YELLOWPAGES
There are a number of multiple applications for the one gTLD, such as ART, AUCTION, BOOK, BET, BABY, HOTEL, HOT, GROUP, GREEN, GAME, CLOUD, CLUB, AUDIO, AUTO, SECURITY, FREE, RIP, MOBILE, MUSIC, NEWS, NOW, ONLINE, PIZZA, PLAY, POKER, PROPERTY, RACING, RADIO, RESTAURANT, RUGBY, SALE, SCHOOL, SEARCH, SHOP, SITE, VIP and SUCKS. There was one PORN application and two SEX applications (and one SEXY application).
There were two applications from New Zealand, KIWI and RIP.
There were two applications from New Zealand, KIWI and RIP.
Tomorrow is gTLD Reveal Day
It is anticipated that 1,900 applications have been made for new gTLDs. Information will be posted here tomorrow.
See also ICANN and here and WIPO LRO page.
Here's $10 off at Shoebuy.com
Save on shoes, accessories, handbags and apparel at Shoebuy.com. We've got something for everyone and for a limited time, you can save $10 on that special something. Valid on purchase of $50 or more.
Kim Dotcom on the offensive
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10809796
Papers state the FBI allegations "turn a blind eye to laws ... that provide a safe harbour" for businesses which work to remove any material which infringes copyright. It stated there was no law which allowed cloud storage companies to face criminal charges over the actions of users.
Papers state the FBI allegations "turn a blind eye to laws ... that provide a safe harbour" for businesses which work to remove any material which infringes copyright. It stated there was no law which allowed cloud storage companies to face criminal charges over the actions of users.
Does MegaUpload have a DMCA defence?
Google Posts Data as to copyright takedown notices
Google has decided to share its insights on copyright abuse amid a loudening outcry for a crackdown against online piracy that media companies have claimed is collectively costing them billions of dollars each year. The backlash inspired a piece of get-tougher legislation SOPA, that had the backing of most major music and move studios. The proposal caused dismay among major internet companies who feared the law would stifle free speech and innovation. The bill was abandoned four months ago after fierce high-tech opposition that included a one-day blackout of popular websites such as Wikipedia and an online petition drive spearheaded by Google.
See Google Data and SMH article
See Google Data and SMH article
Privacy Inquiries re Google
From The New York Times:
Google Privacy Inquiries Get Little Cooperation All sorts of private Internet communications were casually scooped up as Google Street View cars photographed the world’s streets. http://nyti.ms/Kx4aE2
Wrap up - current issues
John will be travelling interstate on Monday, so Carly will be taking his place for the last lecture.
This lecture will focus on current issues, using Facebook as a marketing case study. Have a look at the following articles to start with:
IPO articles and here
marketing - 10 examples
marketing tips
facebook marketing bible
What are the risks of using social media as a marketing tool?
This lecture will focus on current issues, using Facebook as a marketing case study. Have a look at the following articles to start with:
IPO articles and here
marketing - 10 examples
marketing tips
facebook marketing bible
What are the risks of using social media as a marketing tool?
Online contracting, creating websites
e-commerce
Establishing and operating websites
How is contracting online different to other transactions?
What special regulations are there / should there be to address these differences?
Consider:
- UN Convention on the Use of Electronic Communications in International Contracts (CUEIC)
- Electronic transactions legislation - Commonwealth, Queensland
- UNCITRAL Model Law on Electronic Commerce
Ensuring enforceability of online contracts
Consider the differences between shrink wrap, click wrap and browse wrap agreements.
Where do website terms of use fit it? Consider some examples and the similarities / differences between them.
What is the impact of the unfair contracts legislation?
Establishing and operating websites
What do you need to be aware of (having regard to previous lectures)?
Copyright lecture
In this lecture we will focus on a number of important copyright decisions in Australia. However, you should also be familiar with:
Copyright Act, and amending legislation relevant to the Internet - Computer Programs, Digital Agenda, 2004 amendments
Law reform
Australian cases - Kazaa (piracy), MP3s4free (piracy), Fairfax (newspaper headlines), Ice TV (compilations/databases), Telstra (computer generated compilations), iiNet (ISP liability) and TV Now
US cases - Napster, Grokster
Recent news items - NSW police/Micro Focus, 92 year old pirate
Copyright/licensing bodies - Electronic Frontiers Australia, Creative Commons
Copyright Act, and amending legislation relevant to the Internet - Computer Programs, Digital Agenda, 2004 amendments
Law reform
Australian cases - Kazaa (piracy), MP3s4free (piracy), Fairfax (newspaper headlines), Ice TV (compilations/databases), Telstra (computer generated compilations), iiNet (ISP liability) and TV Now
US cases - Napster, Grokster
Recent news items - NSW police/Micro Focus, 92 year old pirate
Copyright/licensing bodies - Electronic Frontiers Australia, Creative Commons
Oracle v Google - verdict
Legal experts decipher Oracle-Google copyright verdict
http://cnet.co/J9Ycz5
Was the jury qualified? See Washington Post.
More details here.
http://cnet.co/J9Ycz5
Was the jury qualified? See Washington Post.
More details here.
How to Muddy Your Tracks on the Internet
Legal and technology researchers estimate that it would take about a month for Internet users to read the privacy policies of all the Web sites they visit in a year. So in the interest of time, here is the deal: You know that dream where you suddenly realize you’re stark naked? You’re living it whenever you open your browser.
...
“Companies like Google are creating these enormous databases using your personal information,” said Paul Hill, senior consultant with SystemExperts, a network security company in Sudbury, Mass. “They may have the best of intentions now, but who knows what they will look like 20 years from now, and by then it will be too late to take it all back.”
See NY Times
...
“Companies like Google are creating these enormous databases using your personal information,” said Paul Hill, senior consultant with SystemExperts, a network security company in Sudbury, Mass. “They may have the best of intentions now, but who knows what they will look like 20 years from now, and by then it will be too late to take it all back.”
See NY Times
info graphic - The Stop Online Piracy Act (SOPA)
A Technical Examination of SOPA and PIPA
By Spencer Belkofer. LLRX.com, April 29, 2012
SOPA is the Stop Online Piracy Act, and PIPA is the Protect IP Act.
Copyright Loss For Optus TV
National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59 (27 April 2012)
"The two primary issues raised in the appeals can be stated shortly. The first is: When a cinematograph film (or copy) and a sound recording (or copy) were made when a television broadcast of one of the AFL or NRL matches was recorded for a subscriber, who, for the purposes of the Copyright Act 1968 (Cth) was the maker of that film, sound recording or copy? Was it Optus or the subscriber (or both of them jointly)? The primary judge’s answer to this was that the maker was the subscriber.
Ours is a different conclusion. The maker was Optus or, in the alternative, it was Optus and the subscriber. It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected. Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.
The second question is: If Optus’ act in making such a film would otherwise constitute an infringement of the copyright of AFL, NRL or Telstra, can Optus invoke what we would inaccurately, but conveniently, call the “private and domestic use” defence of s 111 of the Act? The primary judge did not have to consider this, given his answer to the first question.
Our answer is that Optus cannot either as maker alone or as a maker with a subscriber bring itself within the scope of the s 111 exception on its proper construction."
Domain names
Discussion for this week's lecture will include:
- what is a domain name?
- who ultimately controls domain names - what roles do ICANN, auDA play?
- what legal rights do you have in a domain name?
- how much are domain names worth?
- what is cybersquatting?
- how can you resolve domain name disputes? Please be familiar with the elements of the UDRP and the auDRP. Are these processes preferable to court? What are the advantages and disadvantages of each option?
- how would you go about judging a domain name dispute under the UDRP? Are the decisions consistent?
- what other policies and legal issues impact on an entitlement to domain names?
- new GTLDs
German Court case fails to settle YouTube copyright controversy
A
German court has ruled that YouTube must erase seven contested videos
over copyright issues. However, the decision has failed to settle the
protracted copyright row raging on the Internet.
Hamburg's State Court ruled on Friday that YouTube will have to take
seven videos offline, including "Rivers of Babylon" by Boney M.
The verdict strengthens the position of Germany's royalty collections body GEMA which has been battling Google-owned YouTube over copyright issues for years.
The last agreement expired in 2009 and the conflicting parties have since been at loggerheads over the proper method to collect copyright fees. However, Friday's verdict is not the landmark ruling which some had hoped would once and for all settle the contentious issue of copyright protection in the Internet.
Limited culpability
The Hamburg court decided that Internet platforms like YouTube are not directly liable for the breach of copyrights committed by users uploading protected material. However, the platform is now obliged to "deactivate immediately any illegal videos" once alerted by those holding the copyright.
Notably, the ruling does not oblige YouTube to check all content that has already been uploaded to its site – a key GEMA demand.
The judges said YouTube was not the main culprit because it does not upload or steal any content. Rather it facilitated the copyright breaches by offering and operating the online platform.
In order to prevent further copyright breaches, the judges called on YouTube to employ specific software capable of detecting songs in videos.
The verdict strengthens the position of Germany's royalty collections body GEMA which has been battling Google-owned YouTube over copyright issues for years.
The last agreement expired in 2009 and the conflicting parties have since been at loggerheads over the proper method to collect copyright fees. However, Friday's verdict is not the landmark ruling which some had hoped would once and for all settle the contentious issue of copyright protection in the Internet.
Limited culpability
The Hamburg court decided that Internet platforms like YouTube are not directly liable for the breach of copyrights committed by users uploading protected material. However, the platform is now obliged to "deactivate immediately any illegal videos" once alerted by those holding the copyright.
Notably, the ruling does not oblige YouTube to check all content that has already been uploaded to its site – a key GEMA demand.
The judges said YouTube was not the main culprit because it does not upload or steal any content. Rather it facilitated the copyright breaches by offering and operating the online platform.
In order to prevent further copyright breaches, the judges called on YouTube to employ specific software capable of detecting songs in videos.
Business Method Patents
For tonights class, in addition to the reading listed below, the following recent Australian Patent Office decisions are relevant:
- Celgene Corporation [2012] APO 12
- Discovery Holdings Limited [2011] APO 56 (9th August 2011)
Jail time for Facebook Photos
A New South Wales man has been jailed for six months for posting nude pictures of his former lover on Facebook, Fairfax media has reported.
In the first social networking-related conviction in Australian history, Ravshan ”Ronnie” Usmanov posted six nude photos of his ex-girlfriend on Facebook shortly after they broke up.
The photos showed his ex-girlfriend "nude in certain positions and clearly showing her breasts and genitalia."
"I put the photos up because she hurt me and it was the only thing (I had) to hurt her," Usmanov, 20, was quoted by the Sydney Morning Herald as telling the police.
According to the report, Usmanov also emailed his girlfriend after posting the pictures, saying, “Some of your photos are now on Facebook."
The woman, who cannot be identified, requested Usmanov to take the pictures down but called the police when he refused.
In 2010, a New Zealand man was sentenced to four months in jail for posting a naked photo of his ex-girlfriend on Facebook.
His act was described as one of "irresponsible drunken rage" by presiding judge, who also said, "Technology can't be used in this way. You would do incalculable damage to someone's reputation."Source: Yahoo website
iiNet High Court of Australia Decison - iiNet Wins
The High Court of Australia today handed down judgment in favour of iiNet in the copyright appeal, dealing with whether an ISP should be liable for copyright infringements of the ISP's customers. Unanimous dismissal. French, Crennan and Kiefel
in one judgment and separate judgment of Gummow and Hayne also dismissing appeal.
"Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs."
Summary:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
Judgment:
http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
My commentary in The Age
"Today the High Court dismissed an appeal by a number of film and television companies from a decision of the Full Court of the Federal Court of Australia. The High Court held that the respondent, an internet service provider, had not authorised the infringement by its customers of the appellants' copyright in commercially released films and television programs."
Summary:
http://www.hcourt.gov.au/assets/publications/judgment-summaries/2012/hcasum16_2012_04_20_iiNet.pdf
Judgment:
http://www.austlii.edu.au/au/cases/cth/HCA/2012/16.html
My commentary in The Age
Class 8: Internet and eCommerce Patents
Reading for the Internet patent class:
- Patent Wars
- What should be patented?
- Do Internet patents threaten ecommerce?
- History of software and Internet patents
- Mayo Medical Laboratories v. Prometheus Laboratories, Inc. (U.S. Supreme Court decision 20 March 2012)
- State Street Bank
- Welcome Real-Time
- Bilski
- CLS Bank v Alice
Also, please read the prior posts located here on patents.
e-book Price Fixing?
Last week, the United States Department of Justice and 16 U.S. States sued Apple and several publishers alleging a conspiracy to raise
retail prices for e-books.
In the Southern District of New
York, the Department sued Apple, Hachette, HarperCollins, Simon &
Schuster, Macmillan, and Penguin, reaching a settlement with Hachette,
HarperCollins, and Simon & Schuster. The Department’s
complaint and proposed final judgment can be found here:
http://www.justice.gov/atr/cases/applebooks.html
The Department’s press release
and statements by Attorney General Holder and Acting Assistant Attorney
General Pozen can be found here:
In the Western District of
Texas, the a number of States sued
Apple, Macmillan, Simon & Schuster, and Penguin. The States' redacted complaint can be found here:
https://www.oag.state.tx.us/newspubs/releases/2012/041112ebooks_complaint.pdf
The States were led by the Texas AG and the Connecticut AG. The States
did not sue HarperCollins or Hachette, but stated they had reached
agreement with the two publishers on
restitution and injunctive releif. Here is the Texas AG’s press
release:
https://www.oag.state.tx.us/oagnews/release.php?id=4026
Class 7: Liability of intermediatories and ISPs
This class deals with liability of intermediaries. For example, is an ISP liable for the conduct of its users? Is a web hosting company liable for the content of others that it hosts? Is TripAdvisor liable for reviews of hotels posted by users? Is Google liable for the content that appears on this blog?
This is a very topical class, with a number of relevant decisions from the past two weeks. Thus, there is a lot of reading for this class.
The main reading for the class is the iiNet case:
Should such intermediaries be liable for the actions of others?
This is a very topical class, with a number of relevant decisions from the past two weeks. Thus, there is a lot of reading for this class.
The main reading for the class is the iiNet case:
The iiNet case is currently on appeal to the High Court of Australia. Oral argument has been heard, and we are waiting for judgment. It is reported that judgment will be handed down on Friday, 20 April. Transcripts and written submissions can be found on the High Court website.
Please also read the very recent case: Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49 decided last week; and compare UK position summarised here.
Also, read the following:
- MegaUpLoad and Kim Dotcom indictment; and users trying to get access to their data and MegaRetrevial
- Viacom v. Google decided by the Second Circuit on 5 April 2012; and see note here (and older notes here: YouTube and note and Summary Judgment)
- Bunt case
- Cooper case
- ACCC v Allergy Pathways and ACCC Press Release
- Stratton Oakmont and follow-up
- Communications Decency Act section 230
- TripAdvisor: Terms; Restaurant Gives Up; tips; and Findlaw note; and another lawsuit
- DMCA - Unintended Consequences White Paper
Google Liable for Misleading Advertisements
The Full Court of the Federal Court of Australia today decided that Google was liable for misleading advertisements placed by advertisers. See Australian Competition and Consumer Commission v. Google Inc. [2012] FCAFC 49.
The 3-0 judgment against Google included the following text:
"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...
Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."
The 3-0 judgment against Google included the following text:
"An ordinary and reasonable user would conclude from these circumstances that it was Google who was displaying the sponsored link in collocation with the sponsor's URL in response to the user's search. Even if all these circumstances would not be apparent to ordinary and reasonable users, so that Google could not be "seen" by them to be more than a mere conduit, these circumstances show that Google is, in fact, much more than a mere conduit. ... Critical to this conclusion is the fact that the sponsored link is displayed on the screen in response to a user's query which is made by the entry of selected key words. Thus, the user asks a question of Google and obtains Google's response. Several features of the overall process indicate that Google engages in misleading conduct. ...
Google supplies its advertising customers with the ability to select keywords which are expected to be used by persons making enquiries through Google's search engine. The ability of advertisers to select "broad match" keywords enables them to trigger sponsored links through Google's search engine based on known associations which are determined by Google's proprietary algorithm. Although the keywords are selected by the advertiser, perhaps with input from Google, what is critical to the process is the triggering of the link by Google using its algorithms. That is a further reason to conclude that it is Google's conduct as a principal, not merely as a conduit, which is involved in each of the four instances that form the subject matter of this appeal."
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