The Future According to Google: Technology Policy from the Standpoint of America's Fastest-Growing Technology Company

Abstract

The Internet in general, and Google in particular, are threatened by laws and judicial decisions that impose civil liability for searching or indexing information. Increasingly, copyright and trademark holders are demanding that Google not index certain copyrighted or trademark-related words, images, text, or video. Google often resists these calls by referencing the fair use doctrine in copyright law, and the noncommercial use doctrine in trademark law. The fair and noncommercial use defenses, by privileging efforts to improve access to information, frequently provide effective means of dealing with the legal risks of search engines. In some cases, however, Google has elected to settle litigation, principally in the copyright area, challenging new search engines it has created for books, videos, and news articles. By buying out litigants, it improves the Internet.

Patent law has proven to be more of an obstacle to Google, which is facing several lawsuits alleging that its core functionalities (like Web search and YouTube) violate U.S. patents. Although Google and other technology companies have supported patent reform in the courts and in Congress, these reforms have failed to materialize in the form they desired. Stiff resistance from companies and law firms benefiting from the current patent system makes reform seem unlikely.

At the same time, aspirations by governments and broadband infrastructure providers to exercise more control over the content of Internet communications may frustrate Google's objective of organizing the world's information. For this reason, Net neutrality and global online freedom may be the two of the most challenging issues of technology policy to confront the next administration. It remains to be seen whether in the absence of new legislation, the Federal Communications Commission or other agencies of the federal government have the tools they need to deal with these threats to Internet search and hosting services. Should foreign or U.S. gatekeeper censorship or degradation of Internet service persist, legislative reform may prove to be necessary to protect freedom of expression.

This Essay was selected by the Yale Journal of Law & Technology as one of the winners of its Technology 2008 Essay Contest. The theme of the contest was "the issues that the new presidential administration would likely face," and "potential solutions for those challenges." The author presented a summary of his findings at the Computers, Freedom, and Privacy 2008 Conference hosted by Yale Law School in May 2008.

Keywords: Google, YouTube, Internet, cyberspace, Trademark, freedom, First Amendment, advertising, eBay, Fair Use, Copyright, Freedom of Expression

JEL Classification: A10, A12, D43, D62, D83, H23, K13, K20, K21, K23, K32, O34, Z10