Deciding which search engine to use, Google or Bing, may become a moot point if Google’s allegations are true. Google alleges that a sting operation performed by its engineers proves that Microsoft has been using its Internet Explorer web browser and the Bing Search bar to harvest information on Google users.

AmitSinghal, a Google fellow who oversees the search engine’s ranking algorithm, was quite clear about Google’s findings. Singhal told FoxNews.com that “[o]ur testing has concluded that Bing is copying Google web search results.”Singhal further stated “I’ve got no problem with a competitor developing an innovative algorithm. But copying is not innovation, in my book.”

Bing doesn’t deny the claim. In a statement sent to Danny Sullivan of Search Engine Land, who originally broke the story (Sullivan’s article can be found here: http://searchengineland.com/google-bing-is-cheating-copying-our-search-results-62914), Director of Bing Stefan Weitz seemed to all but admit the claim:

As you might imagine, we use multiple signals and approaches when we think about ranking, but like the rest of the players in this industry, we’re not going to go deep and detailed in how we do it. Clearly, the overarching goal is to do a better job determining the intent of the search, so we can guess at the best and most relevant answer to a given query. Opt-in programs like the [Bing] toolbar help us with clickstream data, one of many input signals we and other search engines use to help rank sites. This “Google experiment” seems like a hack to confuse and manipulate some of these signals.

Harry Shum, corporate vice president, did however deny the outright copying of results. “It’s not like we actually copy anything,” said Shum. “We use the customer data to help improve the search experience.”

A summary of Microsoft’s responses to Google’s allegations can be found here: http://www.zdnet.com/blog/microsoft/microsoft-we-do-not-copy-googles-results/8557.

Google first became suspicious of Bing’s results around May 2010 when it began noticing that Bing was returning the same sites as Google for unusual misspellings. When searching for a misspelled word, Google’s search engine often corrects the spelling and shows results as if the correctly spelled word had been entered into the search box. The fact that Google instead searches for the correctly spelled word is noted on the top of the page, along with an option to search for what Google notes as the misspelled word.

Bing also performs a similar function, including results for what it views as the correct spelling along with results for the misspelled word. This is also noted at the top of the page. However, in May 2010, Google noticed that Bing was not correcting certain misspelled words, yet was returning the same results as Google did for its corrected spelling results.

Concerns were raised again in October 2010 when Google noticed a marked rise in two key competitive metrics. Across a wide range of searches, Bing was showing a much greater overlap with Google’s top 10 results than in preceding months. In addition, there was an increase in the percentage of times both Google and Bing listed exactly the same page in the number one spot.

Based on these suspicions, Google set up a sting operation. Google engineers manually manipulated the top ranked result for certain searches that few people, if anyone, would enter into Google. Such searches included “hiybbprqag,”“mbzrxpgiys,” and “indoswiftjobinproduction. Two weeks later, some of the top ranked results began to appear on Bing.

“It’s cheating to me because we work incredibly hard and have done so for years — but they just get there based on our hard work,” a frustrated Singhal told Sullivan. “I don’t know how else to call it but plain and simple cheating. Another analogy is that it’s like running a marathon and carrying someone else on your back, who jumps off just before the finish line.”

What does this mean for consumers? It means two of the top three search engines become more the same, which is not necessarily a good thing. Being more like Google, does not necessarily guarantee the best search results.

For more background and details about the sting operation conducted by Google, here is a link to Google’s official blog: http://googleblog.blogspot.com/2011/02/microsofts-bing-uses-google-search.html.

The Washington Journal of Law, Technology & Arts has elected Parker Howell as Editor-in-Chief for 2011-12. Howell will be responsible for all aspects of publication and operations including Journal oversight, coordinating long-range planning efforts, and serving as a liaison between the Journal and law school faculty and administration.

Howell is an accomplished journalist and a Juris Doctor candidate at the University of Washington School of Law. He will soon complete a legal internship with the Office of Program Research, the nonpartisan legislative committee staff for the Washington House of Representatives.

Before law school, Howell worked as a business reporter for The Spokesman-Review newspaper in Spokane, Washington. Howell graduated summa cum laude with a Bachelor of Science in Journalism from the University of Oregon, where he was editor in chief of the Daily Emerald, the independent student newspaper.

The Washington Journal of Law, Technology & Arts is the nation’s first technology and law journal that also publishes articles involving the arts. This new focus allows the Journal to play a key role in furthering the University of Washington School of Law’s reputation as a center of innovation and path-breaking legal research. The Journal strives to publish concise legal analysis for practicing attorneys.

The Journal is a partnership between student editors, faculty, and an External Board composed of faculty and practicing attorneys. This ensures the Journal publishes timely, relevant, and informative articles. The Journal takes a comprehensive approach to the legal issues involving technological and artistic innovation. For more information about the Washington Journal of Law, Technology & Arts, visit their website at http://www.law.washington.edu/WJLTA/.

Bristol and Sarah Palin recently attempted to trademark their names, but the United States Patent & Trademark Office (USPTO) rejected their applications for a number of reasons including failure to sign the submissions.

Sarah Palin is also seeking to register her name as a trademark in relation to entertainment services.  Aside from failing to sign the application, the trademark office indicated that she had failed to show how her name was used in commerce.  Trademarks protect marks—including brand names and logos—only when used in connection with particular goods and services. In turn, when filing a trademark application, an applicant must indicate what service or product the mark is representing.

Even if the applicant resubmits signed documents, the application could be rejected on grounds there is not a demonstrated use in commerce.  However, the women have hired a new attorney who is working to fix the problems with the applications.  They have until May 29th to submit the appropriate documentation of commercial use of their marks and their signatures.

Both women are seeking to trademark their names in relation to their motivational speaking services.  Sarah’s motivational speaking relates to “the field of politics, culture, business and values.” Bristol’s motivational speaking is listed as being related to the field of life choices.  Bristol, who starred on the TV show Dancing With The Stars in 2010, speaks to audiences about teen pregnancy and abstinence.

It is not especially common for politicians to trademark their names because they are not attached to any sort of commercial service or product.  However, since Palin resigned as Governor of Alaska, she has written two books, starred in a reality television series on TLC, and also become a correspondent for FOX News.

The United States Patent and Trademark Office generally does not issue trademarks for names to because the agency does not want to forbid a people from using their own names in businesses, according to a U.S. Court of Appeals opinion on the issue. Moreover, some names are so common that no reasonable person would mistakenly believe two entities with the same name are connected.

If the Plain name is ultimately approved as a trademark this will help the Palins protect their “brand” somewhat. However, receiving the trademark registrations will not keep people from using the names in public commentary, parody, new reports, and other areas protected by the First Amendment.

Beth Hutchens at IP Watchdog has excellent coverage of the Palin trademark issue.

Susuk Lim

When was the last time you looked through a physical yellow pages directory to find the local pizza joint’s number? Probably a long, long time – such local inquiries, whether one is looking for the hardware store’s hours or ordering up some greasy prandial delight, are now the domain of the Internet. Recognizing the potential financial and environmental benefits to killing the phone book, several states have recently passed laws allowing land-based phone line carriers to stop distributing paper directories and only make them available on customer request.

Even the National Yellow Pages Association and the Association of Directory Publishers (ADP) seem to have gotten the hint; on February 1, 2011, they setup a website where users can opt out of all paper directories with a single registration (the previous incarnation of the page merely provided links to individual directory publishers).  Now that states, publishers, and the public have aligned, it seems that the fate of the lovable yellow doorstop is sealed.

Not so fast.  In the prevailing spirit, the city of Seattle passed an ordinance last year, imposing licensing and reporting requirements on phone book distributors, as well as assessing annual and per-book fees and requiring them to heed a local opt-out registry. Distributors failing to abide by any part of the ordinance are nailed with a substantial per-violation penalty. Directory publisher Dex Media West did not take long to file a complaint in federal court. Dex Media West, Inc. v. City of Seattle, No. 10-cv-01857, W.D. Wash., complaint filed Nov. 15, 2010. Dex claimed that Seattle violated its First Amendment right to free (commercial) speech by too narrowly targeting yellow page directories for regulation, when other, similar publications (e.g. magazines rife with advertisements, junk mail) were left untouched.  It also averred that the ordinance violated the Commerce Clause by excluding locally-published directories from the ordinance.

On January 13, 2011, Dex Media moved for summary judgment on these grounds. Dex details several constitutional problems with the ordinance’s construction.  First, as previously noted, the ordinance only targets yellow page directories, rather than unsolicited publications as a whole, and in any case does not rationalize how harms caused by directories are any different from other, similar publications. Second, Seattle bowed to local business demands that local directory publishers be exempt from the ordinance’s requirements, which seems like an almost textbook Commerce Clause violation.  Third, and perhaps most practically, the ordinance’s opt-out scheme duplicates an existing, voluntary, and national opt-out scheme, and could encourage other states or cities to do the same, which would paradoxically make it more difficult for a consumer to opt out because of the resulting patchwork of requirements.

Note the date the motion was filed – January 13, 2011.  The ADP’s improved national opt-out registry was launched on February 1, making the Seattle opt-out scheme even more duplicative than Dex had originally argued.  Regardless of the viability of Dex’s constitutional arguments, which seem persuasive, one wonders how the city of Seattle can now argue that the ordinance has any real benefit for the public it purports to protect.  In fact, in its January 31 response and cross-motion for summary judgment Seattle is silent on how the ordinance’s regulation and licensing scheme, or its local opt-out mechanism, is any better at relieving the public burden caused by printed yellow page directories than an existing national opt-out scheme. Rather than argue why the ordinance is useful, Seattle expends most of its verbiage on why the ordinance is constitutional.  Courts are practical institutions. They, too, will likely inquire why Seattle is insistent on protecting a seemingly purposeless law.

This seems to be a case in which a city government, swept along by a tide of public sentiment, attempts to legislate away a problem without adequately considering how best to do so.  One might argue that given the printed yellow page directory industry’s inevitable demise (incidentally, supported the industry’s own members, who have moved on to bigger and better things), Seattle should have just left well enough alone.

Until the case is resolved, Seattle residents can simply continue to ignore the moldy stacks of banana-yellow phone books strewn about their front stoops when ordering their pepperoni pizzas.

University of Washington School of Law has published the Winter 2011 issue of the new Washington Journal of Law, Technology & Arts, the nation’s first student-run electronic law journal focusing on technology, commerce, and artistic innovation.

The Washington Journal of Law, Technology & Arts publishes concise legal analysis aimed at practicing attorneys. The Journal publishes on a quarterly basis. This quarter’s edition includes five articles on topics such as:

• The “Three Strikes” Policy in Korean Copyright Act 2009
• Antitrust Liability for Denying the Authenticity of Artwork
• Evaluating an Investor’s Secondary Copyright Infringement Liability
• Exportability’s Effect on Process Patent Enforcement
• Copyright Protection of Short Portions of Text in the United States and European Union

This issue’s lead article, “The “Three Strikes” Policy in Korean Copyright Act 2009: Safe or Out?” is written by Sun-Young Moon, a Professor of Law at Sookmyung Women’s University in Seoul and Daeup Kim, an L.L.M. candidate at Sungkyun Kwan University in Seoul. The article describes how Korea revised its copyright laws to protect intellectual property from infringement. The new Korean Copyright Act allows the Minister of Culture, Sports and Tourism to issue orders to delete infringing content, suspend accounts, and allow the Korea Copyright Commission to issue correction recommendations. Under the “three strikes” policy, accounts are only suspended after three warnings. Online service providers can be fined up $9,000 USD for failing to respond to a correction recommendation.

Korea’s new “three strikes” policy has raised several constitutional concerns including free speech violations, violation of separation of powers, and due process concerns. Moon and Kim argue, however, that the policy has sufficient protections to ensure constitutionality. Nevertheless, the authors recommend several policy revisions to make the new law more effective. First, preventive education about the cost of copyright infringement and the lawful alternatives to infringement could be used before shutting down internet service with a correction orders. The goal would be to intervene early to prevent future repeat infringement. Second, the authors recommend no prosecuting youth or those who are infringing on copyright for personal use. Instead they recommend imposing training and education obligations on non-commercial infringers.

Gareth S. Lacy, the Editor-in-Chief of the Washington Journal of Law, Technology & Arts, wrote this issue’s second article, “Standardizing Warhol: Antitrust Liability for Denying the Authenticity of Artwork,” which analyzes the legal battle between an art collector, Joe Simon-Whelan, and the Andy Warhol Art Authentication Board. Simon-Whelan sued the Board after being told his painting was not an authenticate Andy Warhol painting, an opinion that rendered the work of art virtually worthless. Simon-Whelan alleged the Board refused to certify the painting to drive up the value of the Warhol Foundation’s own art collection.

The article describes how art collectors have been suing experts for decades after receiving adverse opinions on the authenticity of artwork, but this is the first significant case to involve antitrust law. What makes this recent legal battle interesting is that Simon-Whelan claimed the Board was violating antitrust laws by colluding with the Foundation to drive up the value of the Foundation’s art collection. No such legal claim had ever survived the preliminary stages of litigation. In short, Simon-Whelan v. Andy Warhol Foundation for the Visual Arts, is important precisely because the case proceeded to discovery and allowed Simon-Whelan to probe the foundation’s inner workings. Lacy also discusses how antitrust law outside the art world could apply to litigation over the authenticity of artwork.

James Proctor, author of LTA-Blog’s first “Freshly Pressed” blog post, wrote this issue’s third article, “Capital Punishment”: Evaluating An Investor’s Secondary Copyright Infringement Liability after Veoh. The article discusses whether investors might be liability for copyright infringement based on the activities of the company in which they invest. In UMG Recordings, Inc. v. Veoh Networks, Inc., the U.S. District Court for the Central District of California considered claims that investors in a privately-held corporation were secondarily liable for copyright infringement.

Proctor explains that Veoh describes how investors might be liable for copyright infringement committed by the company in which they invest. Nevertheless, the decision is fact-specific and offers incomplete guidance for investors. For example, the court found that the investor in the case did not control the infringing activities or reap direct financial benefits. In addition, the court based secondary liability on subjective concepts such as “control,” “ability to supervise,” and “encouragement to infringe.” Proctor recommends obtaining representations and warranties from prospective investment targets as well as negotiating appropriate indemnification in case the source of investment is later found to be committing copyright infringement.

The fourth article in this issue, Exportability’s Effect on Process Patent Enforcement: Why § 271(f) Export Restrictions Do Not Apply to Intangible Process Claims, is written by Homer Yang-hsien Hsu, the Editor-in-Chief of the Law, Technology & Arts Blog. Hsu describes a recent federal court decision that held process patents–patents protecting how something is created, rather than a tangible creation itself–are not protected by a federal statute that prohibits U.S. manufacturers from shipping components overseas to avoid U.S. copyright law.

Hsu explains how Congress enacted 35 U.S.C. § 271(f) to prohibit shipping patented devices in smaller components for assembly overseas. But it has been unclear whether § 271(f)—which clearly applies to physical things—also applied to process claims. Hsu describes how the recent decision Cardiac Pacemakers, Inc. v. St. Jude Med Inc., held that § 271(f) does not apply to process claims because a component of a process claim is an intangible step that cannot be physically supplied. Hsu discusses  the implications of this decision for those who hold process patents in the United States. Hsu concludes the although § 271(f) offers limited protection against those who might use process patent information overseas, patent attorneys might still be able to obtain some protection by seeking out tangible combinations of elements that occur during intangible processes.

This issue’s fifth article, How Much is Too Much? Copyright Protection of Short Portions of Text in the United States and European Union After Infopaq International A/S v. Danske Daglades, is written by Connor Moran, the Journal’s Associate Editor-in-Chief. The recent case Infopaq International A/S v. DanskeDagblades Forening, decided by the Court of Justice for the European Union, held that short excerpts of copyrighted material, which could be lawfully copied in the U.S., would be illegal copyright infringement in European Union member states. In the United States, copying short phrases only infringes on copyright if the phrase is  particularly unique. But the European Union Information Society Directive grants exclusive right to even partial reproductions.

Moran’s article examines the standards for copyright infringement of small sections of text in the United States and European Union after Infopaq. In the Infopaq case, the European Court of Justice read the Directive to apply to eleven-word sentence fragments so long as those fragments demonstrated the author’s intellectual creation. Moran concludes that E.U. copyright protections may be stronger than those in the United States. In the U.S. there is a defense known as the de minimis defense, which often permits copying short fragments of text so long as the phrase is not especially unique. By contrast, the European Court of Justice did not recognize such a defense, opening the door to national courts finding illegal reproduction when fragments of sentences are copied.

The Winter 2011 issue demonstrate the Journal’s commitment to publishing cutting-edge legal analysis on a broad range of issues. The Journal is the nation’s first technology and law journal that also publishes articles involving the arts. This new focus allows the Journal to play a key role in furthering the University of Washington School of Law’s reputation as a center of innovation and path-breaking legal research.

The Journal accepts outside submissions from students, law professors, and practicing attorneys. For more information about the Washington Journal of Law, Technology & Arts please visit their new website. Download the entire Winter 2011 issue of the Washington Journal of Law, Technology & Arts or visist www.law.washington.edu/wjlta for invidual articles.