This morning, Search Engine Land reported on some detective work at Google (NSDQ: GOOG) that seems to indicate that Microsoft (NSDQ: MSFT) is watching how some Internet Explorer users search on Google and using that data to improve its own Bing search engine. By watching and learning from users who have a Bing toolbar installed and volunteer to share certain browsing information with Microsoft, the company could be said to be “copying” Google’s search results. But neither Sullivan’s post nor the Google Fellow who told him about the operation answered the looming question: Is this legal?
Like so much when it comes to internet law, it isn’t clear cut. But if Microsoft is just using the Google search results as it says it is-as one of more than 1,000 different variables that improve its algorithm-it’s likely in the clear from a copyright point of view.
Some legal issues to keep in mind:
» Google doesn’t “own” the data it’s spitting back at you when you type in a search query. The headlines and snippets that Google provides to searchers aren’t the company’s own intellectual property; they’re being pulled from other websites. Google itself is making “fair use” of other people’s content. And in any case, it’s tough to copyright a simple list of information, even if you put a lot of work into it. In a famous 1991 Supreme Court case called Feist Publications v. Rural Telephone Service, the high court found that a phone-book company in a rural area was allowed to engage in wholesale copying of phone listings from a competitor, even though it was really free-riding off another’s work. Copyright is only meant to protect originality, not facts.
» But Google’s ordering of its search results is very likely protected by copyright. What Google could make a copyright claim to is how the results are ordered by its algorithms and presented to users. And in some of the cases discovered by this “Bing sting,” Microsoft does seem to be copying Google’s ordering-it mirrors Google’s all-important top-line search result, after all.
So if Microsoft is whole-hog swiping Google’s results to solve a particular problem that it can’t solve-misspelled search queries, for example-it could get in real trouble.
But if Microsoft’s response today is accurate-that peeking at the Google results that (opt-in) Bing toolbar users get is just one of more than 1,000 variables that go into its search results-the company is probably safe from any legal claim. There’s nothing stopping any company from taking a look at what the competition is up to, and re-assessing its own performance based on that. Google’s claim that such behavior is “cheating” doesn’t change the fact that all competition involves watching what your competitors are doing, and sometimes following suit.
Google employed a team of about 20 engineers, who performed highly unusual Google searches-repeatedly-over a period of two weeks, while they were using the Bing toolbar. That lends support to Microsoft’s story about what really happened here: Google was able to correctly identify one factor that Microsoft was using to tweak its own search engine and “hack” it.
» Legal issues beyond copyright. In an e-mail exchange, law professor and blogger Eric Goldman noted that two other legal factors might come into play. First, false advertising. “If Bing has been making comparative statements about its quality vs. Google, and those statements were overstated because in fact Bing is mimicking Google, that could create liability to Google, consumers and others,” writes Goldman. Second, if Microsoft didn’t adequately disclose what data the toolbar was collecting, it might be liable to toolbar users.
Goldman added he didn’t have enough facts on hand to adequately opine on these issues-but the question is intriguing enough that he might make it into a future final exam question for his classes. Prospective Internet Law students, take note.