Search Engine Indexing Case–Newborn v. Yahoo

By Eric Goldman

Newborn v. Yahoo, Inc., 2005 WL 2416336 (DDC Sept. 27, 2005)

We got a new case on search engine liability for indexing content. The importance of the topic makes the case blog-worthy, even though this particular case gives very little insight into the legal propriety of search engine indexing.

In this case, a web publisher sued Google and Yahoo for contributory copyright and contributory trademark infringement based (apparently) on their indexing the publisher’s press releases. I say “apparently” because the plaintiff was unable to articulate a legal complaint or a statement of facts that the judge could understand. Because of the defects in the complaint, the judge granted a motion to dismiss with prejudice, ending the case before it started.

On the contributory copyright infringement claim, the court said that the complaint failed to allege sufficient facts that the defendants substantially participated in the infringements. The court then cited the legal rule from Perfect 10 v. Visa: “plaintiff must show ‘a relationship between the … services provided by [the] defendants and the alleged infringing activity as opposed to the mere operation of the website businesses.”

This is an interesting citation because the Visa case dealt with a very attenuated service provider–the payment systems–who did not host or data-process any of the infringing content. I could see many courts avoiding the Visa case as precedent because its facts were so extreme. But if courts are willing to use it as precedent, the Visa/Newborn standard is very defense-favorable.

There are some other interesting and off-the-wall points to the case, but mostly their illustrate that poor advocacy leads to low judicial precision. If you’re going to sue Google or Yahoo for indexing practices, get a top-notch lawyer. Meanwhile, the legal propriety (or lack thereof) of search indexing practices will have to wait to another day.

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