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This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that keeps you up to date on all the twists and turns in the world of technology law.
Every week we bring you the latest news and in depth features that help you to make sense of the ever changing laws that govern technology today.
My name is Matthew Magee, and this week we talk to the man who hopes to hold Google responsible for typosquatting to the tune of billions of dollars.
But first, the news:
Thirty UK organisations under privacy investigation
Publishing a link to defamation is not the same as defamation
and
Web giants sign privacy pledge
The UK's privacy watchdog the Information Commissioner's Office is currently pursuing 30 investigations into serious data security breaches, it said. In the past year 227 breaches have been reported to it. 176 of those relating to the public sector.
Information Commissioner Richard Thomas said that the bosses of organisations had to take responsibility for the growing trend to gather large amounts of personal information in computer databases and the risks associated with that.
The ICO said that it was working with Government on the detail of a plan to give it power to impose large penalties for reckless or deliberate data breaches, a power Parliament recently decided to give it.
The publisher of a link to defamatory material does not have any liability for that defamation, a Canadian court has ruled. Liability could only exist if the link publisher made any statement relating to the defamatory material itself, the court said.
Mr Justice Kelleher in the Supreme Court of British Columbia in Canada ruled that a hyperlink was like a footnote in that it led to material produced by a third party which the reader did not have to follow. The publisher of the link could not be liable for someone else's content, he said.
His ruling said: "Although a hyperlink provides immediate access to material published on another website, this does not amount to republication of the content on the originating site. This is especially so as a reader may or may not follow the hyperlinks provided."
The judge said that a hyperlink could be defamatory in cases where the publisher of the link made a comment about the truth or otherwise of the material at the other end of the link.
The law on linking to defamatory content has never been tested in the UK, said Struan Robertson, a technology lawyer with Pinsent Masons, the law firm behind OUT LAW.
Earlier this year a French court held sites responsible for linking to material that illegally invaded the privacy of Olivier Martinez, Kylie Minogue's ex boyfriend.
Microsoft, Yahoo! and Google have signed up to a privacy framework which orders them to challenge any government in the world over requests for private information if they believe the request breaks international human rights laws.
The three companies are amongst those who have signed up to the Global Network Initiative, an organisation formed to promote a set of principles by which its members agree to abide.
Search engine and internet companies have faced controversy in the past because of Governments' demands for information about the online activities of citizens, often political opponents.
The GNI principles commit the companies to opposing Government requests for information on users if they break international human rights law, even if they are in line with domestic law.
That was this week's OUT-LAW News.
It must have happened to you countless times – you type the web address of where you want to go into your browser and instead of being taken to your bank or your favourite newspaper, you are presented with an odd site bearing nothing but adverts and links. Some of them might even be for the business you were looking for in the first place.
Realising you slightly mis typed the address, you enter it again and get to your destination. Total lost time? Probably about ten or fifteen seconds.
But what took you ten or fifteen seconds has become the subject of a lawsuit that could mushroom into a billion dollar threat to web advertising giant Google.
The site you visited was a typosquatting page, one designed to get paid when you visit the ads it shows when you mis type an address into a browser.
Companies all over the world are taking piece meal actions against typosquatters, wrestling back one by one the domain names that differ from theirs by a letter or two.
Ben Edelman, though, is taking a bolder approach – he is following the money.
Edelman, an assistant professor at the Harvard Business School, is a lawyer and he is taking a case against Google because it supplies the ads that appear on many of these sites and help them to become viable businesses.
He explained why he thinks Google shares responsibility for typosquatting.
Edelman: Google's role is two fold. One, Google finds advertisers.Google gest the advertisers to agree to buy advertising typically on a per click basis; and second Google pays the domain parking companies in proportion to how many ads were clicked. Incidentally in a crucial final role Google selects which ads are to be displayed in almost every circumstance and so Google knows which ads are being shown, Google knows which ads are being clicked and they know where the ads are being shown - that is on which typosquatting website. For that reason we do think Google has an important share of the responsibility here and that is why Google is a part of the action.
Edelman is seeking court permission in the US to turn his case into a class action suit, where one case will make a decision on behalf of all of those in a similar situation.
Edelman: Google says: Anyone who wants to sue; well let them sue individually but they cannot sue in a class action. And on that, we pretty strongly disagree. We think a class action is appropriate here. We think all the typosquatting sites are basically the same. They are all registered for the same purpose. They are all registered by the same sorts of registrars. They all have the same basic business method and business model revenue sources and so we do think that the typosquatting class action is an appropriate way to resolve this remarkably widespread problem.
That raises the stakes to frightening levels. Edelman's case is that Google's activity breaks the US Anticybersquatting Consumer Protection Act. That allows for damages of one thousand dollars per domain name.
If successful, the case could cost Google billions of dollars.
Typosquatting is rife. All of the world's 500 biggest companies in 2007 suffered from it, OUT LAW revealed last year.
Experts fear that the number of typosquatted domain names run into millions. Even if just one million of those carry Google's advertising, then a one thousand dollar penalty per domain name would cost Google a billion dollars.
But should it be Google that pays out? Surely the people defrauding the advertiser of ad money and the web user of fifteen seconds of their life are the typosquatters. Why should Google pay the price?
Edelman: Google itself selects the ads. Google decides when a user is at Bank of d-America that the user is looking for Bank of America and that an ad for Bank of America should be shown. That is a decision made by Google not by the parking company, not by the registrant. Second, Google is for most of these sites the sole source or the sole substantial source of revenue. There may be there are a couple of banner ads around the edges but by and large the websites just show Google ads. Google is all of the money. And if Google is all of the money naturally Google has a particular kind of control over who they are paying and why they are paying.
How much does Google earn from typosquatting? Well, Edelman believes that an estimate of between thirty two and fifty million dollars a year is the very lower boundary of what is possible, but he said he won't know until the court grants him access to Google's records to find out.
So what is it that makes Google's activity illegal? Edelman talked me through the law.
Edelman: In the United States we have federal legislation on point. It's called the Anticybersquatting Consumer Protection Act, the ACPA and it has three basic prohibitions. It says for any domain that is identical to or confusingly similar to a trade mark or famous name, do not register, do not traffic in and do not use those domains. So Google certainly does not register the domains. Does Google traffic in the domains? Well an interesting argument could be made either way, but certainly Google uses the domains. Google contracts to have its ads shown, to have its ads shown exclusively. That's definitely a kind of use. So we think Google breaks the law and that really trumps the rest of it. You can dispute what the policy ought to be, what the law ought to be but the law is what it is and we think it should be complied with strictly.
But what could Google do about this? Surely it can't know exactly what domain names are typosquatted and which ones are not, can it?
Well, Edelman says yes it can. In fact, he says, its own search engine provides a clue as to how it could distinguish between a real and a typosquatted domain name.
Edelman: It is actually not that hard. You may be familiar with the 'did you mean?' feature where Google looks at what you request in a Google organic search box - quite different from a direct navigation domain request to be sure - but Google can recognise when you type in Bank of d- America into Google that you are actually trying to get to Bank of America and they will say: 'did you mean Bank of America'? So to here we think Google ought to use a similar good faith analysis to attempt to get to the bottom of what the user actually was trying to do and to compare that with a list of well known trade marks just as the law requires in order to avoid using these domains that are infringing on trade marks and famous names.
We asked Google for a comment. They would only say that it believes that these claims are entirely without basis, and is vigorously defending itself.
Google does have a policy for dealing with typosquatting, but Edelman says not only is it inadequate, but that he doesn't need to rely on it because he feels he has a legal remedy.
Edelman: Google says that anyone who is dissatisfied with the way Google has used their trade marks can file a complaint on Google's website and Google will stop in short order. That may well be. I think some companies have some success in using Google's complaint procedure but of course that ignores the important decision Congress made in passing this law. Congress said if a typosquat occurs and the victim of the typosquat gets a minimum of one thousand dollars. So that was Congress' decision as to how this problem should be stopped. Congress thought that kind of penalty would significantly deter infringements. Google's policy of course does not involve Google paying anyone one thousand dollars so we do not think Google's policy in and of itself solves the problem.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT LAW Radio? Do you know of a technology law story? We would love to hear from you on radio@out-law.com. Make sure you tune in next week; but for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for international law firm Pinsent Masons.