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Search Engines and Legal Issues, Continued

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Part two of a special report from the Search Engine Strategies 2002 Conference, August 12-14, San Jose CA. Click here for part one.

Is copying a web page 'fair use'? How many of your competitors' keywords or trademarks can you legally use on a web page? Recent court cases provided answers.

TOPIC: Miss Cleo and Pagejacking
CASE: Garen vs. Feder
ISSUE: Copyright

Nancy Garen is the author of "Tarot Made Easy." Garen alleged that Psychic Readers Network, d.b.a. MISS CLEO, was using contents from the book without permission from the author or the publisher throughout their site, amounting to over 90% of the book being used on the Web site without authorization.

The company removed Garen's content from Web site but was still sued along with other participating companies and individuals.

Deborah Wilcox stated, "Copyright protects original works of authorship - and that includes a Web site. You can't have copyright protection for short excerpts, but you can for a whole body of work. Pyschic Hotline took so many excerpts that it amounted to infringement."

Wilcox recommended that the following steps should be taken prior to a lawsuit to get a copyright infringement resolved:

1. Send out a letter from a legal representative explaining the infringement, and that the company or individual will be sued if they don't comply.

2. Register for an actual copyright so you can get statutory damages and recovery of your attorney's fees. If you don't register before the infringement occurs, you can only sue for actual damages, which is harder to prove.

"In this [Miss Cleo's” case, the abuse was so widespread and so persistent, and highly impacting the business," she said, "they had to file a lawsuit for damages against all of the companies and individuals involved. It can be a very serious issue not only for the companies but also for the individuals behind the companies."

The case is still in litigation. For more information on this case and related issues, visit:

TarotNews.com
http://www.tarotnews.com/

The Future Looks Bright for Miss Cleo
http://www.courttv.com/news/feature/misscleo3_ctv.html

TOPIC: Keyword Size Matters
CASE: J.K. Harris & Co. vs. Kassel
ISSUE: Using keywords and company names on Web pages

J.K. Harris & Co. sued Steve Kassel at Taxes.com because the Taxes.com site was ranking higher in the free search engine results than the J.K. Harris site for the search term " J.K. Harris". For the first time, issues of keyword density and header tags were cited as evidence by the court.

J.K. Harris sued for trademark infringement, unfair competition, false and misleading advertising, and defamation.

The Web page cited was entitled "Complaints about J.K. Harris" in which Kassel printed emails detailing his conversations with investigators about J.K. Harris. One of his pages was an actual reprint from the Wall Street Journal mentioning J.K. Harris being raided by the IRS.

"There are many things about this case that are strange to me," said Kassel. "First of all, we are a competitor of J.K. Harris, and both sites represent delinquent taxpayers. We got so many complaints over 3 years that we decided to post these complaints and made sure they were truthful."

Kassel believes the reason his site came up high in the search engines is that there are very few listings for the search term "J.K. Harris."

Kassel showed the court results from his traffic statistics software, HitBox Pro, proving that very few people ever do a search for the term "J.K. Harris." Over a one-year period, only 23 people typed that term in a search engine and landed on his site. Yet the judge's argument was that people would still confuse Taxes.com with the actual J.K. Harris site.

"Which was ludicrous," said Kassel, "since on our own site, it says on everything that we are not J.K. Harris."

The judge ruled that Kassel had the right to use the "J.K. Harris" term. "But she didn't like the number of times that we used it," said Kassel.

Recently a preliminary injunction was issued against Kassel by the court. But the Electronic Frontier Foundation filed a brief on Kassel's behalf which they prevailed on, and there will be a reconsideration.

"The judge seemed to think that somehow there was manipulation, that bolding and underlying the term might be unnaturally influencing people," commented Deborah Wilcox. "But I don't think she gave the First Amendment a fair shake. You should be able to say what you want as long as you don't cross some line in deceiving people. The initial interest confusion doctrine is a new doctrine about people being brought to the wrong place, and if getting them there may be illegal."

For more information on this case and related issues, visit:

J.K. Harris Sues TAXES.COM
http://www.taxes.com/jkharris_sues_Taxes.com.htm

Ruling Expands Web Trademark Protections
http://www.law.com/regionals/ca/stories/edt0409e.shtml

Court Censors Tax Site, Restricts Searches
http://www.eff.org/IP/20020710_eff_pr_taxes.html

Court Order Curbs Site's Ranking In Search Results
http://computeruser.com/news/02/04/12/news4.html

Summary of the J.K. Harris vs. Taxes.com Ruling
http://www.phillipsnizer.com/int-art267.htm

Excessive Use Of Competitor's Mark On Website Is Not Fair Use
http://www.graydon.com/pages/ecomjun25_2002_fullstory.html

J.K. Harris Home Page
http://www.jkharris.com/

In summary, the speakers for the Legal Issues recommended taking the following precautions to protect your web site:

1. Make sure your content is original. If it's not original, make sure it is copyrighted. If it is not copyrighted, get a license.

2. Limit your use of others' trademarks to relevant or comparative activity.

3. Minimize your liability - include a disclaimer on your site.

4. Make sure you're protecting your intellectual properties. Register your trademarks and copyrighted material, and get educated about these issues.

5. Electronic Frontier Foundation can come to them for legal help, and get them to reconsider a legal injunction.

6. Choose your battles wisely. Lawsuits are expensive and time-consuming! See who's doing things innocuously as opposed to intentionally.

Search Engines and Legal Issues
SearchDay, October 23, 2002
Part one of this article: What do Playboy and pagejacking, tarot readings and taxes all have in common? They were the subjects of ground-breaking court cases that set legal precedents for acceptable practices on the web.

Shari Thurow is the Marketing Director and Webmaster for Grantastic Designs, Inc. She has been designing and promoting web sites since 1995 for businesses in a wide range of fields. Grant Crowell is the CEO of Grantastic Designs, Inc, founded in 1993 in Honolulu. He has 15 combined years of experience in the fields print and online design, newspaper journalism, public relations, and publications.

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