It may or may not be true that sooner or later, everyone in intellectual property law will be suing Google.
Well, it’s almost certainly not true. But there’s no question that this dominant player in the Internet (yes, I own a few shares!) (to be exact: four. or five.) is starting to present a ripe target for many a frustrated trademark or copyright owner that is miffed about having its IP properties diced and sliced the Google Way. (UPDATE: And some others.)
As a service to the IP bar, and via the No Watermelons Allowed blog, here’s the first order of business: Coming to a coherent technical understanding of how Google works, courtesy of the Computer Society of those rapscalions at the Institute of Electrical and Electronics Engineers.
Be sure and give me a head’s up when you find someone who has abstracted this into English. But frankly, who wouldn’t like to see more heavy-lifting, drawing on this sort of nuts and bolts technological insight, in the many judicial opinions that brush so very broadly on the issues that will have a vast impact on the Internet and the economy to which it has given birth. For nearly a decade now judges have been ruling on critical cases involving the Internet and IP, trade law and other areas of law without evincing much proof of having gone beyond their own hunches (and maybe those of their clerks) as average Internet Explorer users.
In reality, Congress should be making these calls, not the courts. The question, for example, of whether a search engine is or is not causing likelihood of confusion by delivering results utilizing key word searches that happen to be someone’s trademark is essentially a metaphysical one — which is to say that judges are making policy decisions, which Congress is supposed to do. There is no right or wrong answer to whether someone searching for Coke, and getting the Pepsi website, should be protected from such “unfair competition.” Congress has the horses to get people knee-deep into articles such as this one, to utilize their hard-care technology expertise, and to make appropriate legislative recommendations.
This is all starting to matter too much to be left up to District Court judges in the most overturned Circuit in the country. Or have you heard what I am told is the latest bit of waggery among certain sectors of the bar: How does a typical U.S. Supreme Court opinion now begin? “This case is on certiori from the Ninth U.S. Circuit Court of Appeals. The other grounds for reversal are as follows….”
Isn’t it possible for the legal-political-commercial regime to make some attempt to manage, rather than be managed by, the development of the law of the Internet?
(By the way, don’t have a cybercow. I said manage development of the law of the Internet — not “manage the Internet” or “manage the development of the Internet.”)