Expert: Search Law Is Not Uniform; Search Engines Are Not Neutral

The emergence of a neutral search engine or a unified search engine law is highly unlikely, according to Stefan Bechtold of Germany’s Max Planck Institute for Research on Collective Goods and Stanford Law School. What we have and will have, Bechtold predicts, are a diversity of programs and legal decisions on search engine matters unless self-regulation kicks in. Best practices may also be used to tackle anti-trust and censorship issues linked to search engines, according to Bechtold. Search engines, Bechtold explains, are not neutral because they use pre-determined factors to set up algorithms and therefore produce certain search results. Several search engines, he adds, have been forced to comply with local censorship laws to stay in business in economic powerhouses such as China. Search engine law, Bechtold says, is disparate and stronger (or weaker) depending on the jurisdiction. To illustrate this situation, Bechtold uses several examples. U.S. law determines when a search engine is liable for copyright violations. European courts are increasingly interpreting national laws to prevent said violations, as well as to prevent access to racist results. U.S. courts, meanwhile, describe the use of thumbnails as fair use, while a German court rules it is a copyright violation. French courts do not allow the use of trademarks as search terms for products from third parties while U.S. and German courts have found no harm in these types of claims. One way to tackle these issues, Bechtold says, is to encourage search engines to engage in self-regulation. Standards could also be used to discourage search engines from engaging in practices to protect their databases that are anti-competitive, as well as to stay in business that may strengthen repressive governments, Bechtold adds.

The following questions have been addressed in this article:

When would a search engine have secondary liability? What decisions have been made?
When would a search engine have primary liability? What judgments have been made?
Why do search engines create competition problems?
Why do search engines create communication challenges and how can those problems be solved?


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