Articles Posted in Google

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Google EspañaLast month, the Court of Justice of the European Union issued a preliminary ruling on the right of natural persons to privacy with respect to the processing of personal data. In the case, Mr. Costeja González, a Spanish national, had lodged a complaint with the Agencia Española de Protección de Datos (AEPD), the Spanish Data Protection Agency, concerning a then 12-year-old announcement in La Vanguardia Ediciones SL, a Spanish newspaper, that mentioned a real-estate auction connected with attachment proceedings for the recovery of Mr. González’s social security debts. Mr. González wanted his personal data in the announcement removed from the La Vanguardia website. In addition, he wanted Google Inc. or Google Spain to remove the La Vanguardia web pages from its search results.

The AEPD rejected the complaint against La Vanguardia because the Ministry of Labour and Social Affairs had ordered the announcement to promote the auction and secure as many bidders as possible. However, the AEPD upheld the complaint against Google Spain and Google Inc. The Google companies then brought separate actions before the Audiencia Nacional (National High Court), which stayed the proceedings and referred several questions regarding Directive 95/46 to the Court of Justice of the European Union.

In upholding the right of data subjects to have certain search results associated with their names removed from search engines, the Court of Justice stated that search engines may initially be able to process accurate personal data regarding a person. However, over time, this right may conflict with the Directive if such results are “inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.” Accordingly, the right of privacy should be balanced against the economic interest of the search engine operator as well as the “interest of the general public in finding that information.” Continue reading →

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On November 30, Google was hit with yet one more class action lawsuit over Gmail’s method of scanning emails to deliver personalized advertising to its users. The named plaintiff in this case, Kristen Brinkman, filed the lawsuit in the U.S. District Court for the Eastern District of Pennsylvania.

Like in the other cases, this case alleges that the way Google automatically scans the emails of its Gmail users to deliver personalized ads is unlawful. The complaint cites Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. §5701 as prohibiting the behavior in which Google allegedly engaged.

There is nothing unusual about this case as compared to any of the other related cases filed against Google (in California, Florida, and Illinois). The complaint lays out as the proposed class of plaintiffs “[a]ll natural persons located within the Commonwealth of Pennsylvania who sent e-mails from a non-@gmail.com account e-mail address to an @gmail.com account e-mail address the owner of which was also located within Pennsylvania from within” the statute of limitations.”

Theoretically, there could be a similar state-wide class action lawsuit in every state with an applicable statute, as well as one with a nationwide class raising federal claims. Likely we will see more and more of these cases crop up across the country until the question is fully resolved.

Complaint in Brinkman v. Google, Inc.

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On Thursday, November 29, Google was named as the defendant in a patent infringement lawsuit filed in U.S. District Court for the District of Delaware. The plaintiff is a Delaware company called CreateAds LLC, which, according to its website, is a tool that allows people to create print ads for any U.K. newspaper or magazine. The company alleges in its complaint that Google’s “Google Sites” product infringes on the patented software that powers the plaintiffs.

The patent at issue, U.S. Patent No. 5,535,320, is entitled “Method of Generating a Visual Design” and was issued in 1996 to its inventors, Clive H. Gay and Henri W. Frencken. According to the complaint, Clive Gay’s company CreateAds is built upon the software described in the patent. The complaint alleges that Google Sites’ “template-based visual design generation products and services” infringe on the plaintiff’s patent.

Complaint in CreateAds LLC v. Google Inc.

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Massachusetts company Lexington Luminance LLC (“Lexington”) filed a lawsuit against Google, Inc. yesterday, November 29, in the U.S. District Court for the District of Massachusetts. It its complaint, Lexington alleges that Google’s Nexus 7 and other similar products infringe on a patent the company owns.

According to the complaint, the patent at issue, U.S. Patent No. 6,936,851, is entitled “Semiconductor Light-Emitting Device and Method for Manufacturing Same” and was issued to Lexington in 2005.

A Massachusetts business entity search reveals that the registered agent of Lexington is Tien Yang Wang, the inventor of the patent at issue. Organized in July 2012, the business has stated as its purpose “Technology Research and Development.”

Photo credit: Sergey Nivens/Shutterstock.com

Complaint in Lexington Luminance LLC v. Google, Inc.

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Yesterday, November 29, Brent Matthew Scott filed a class action lawsuit against Google, Inc. in the U.S. District Court for the Northern District of Florida. The lawsuit alleges that through its Gmail product, Google violated state laws against wiretapping.

Specifically, the complaint alleges that Google intercepts the plaintiff’s emails (and those of the entire class of plaintiffs) before they reach the intended recipients, in violation of the Florida Wiretap Act, codified at Florida Statute § 934.03.

Most of the lawsuits against Google that are brought under state and federal wiretapping laws have alleged that Gmail’s automatic scanning of emails for personalized ad placement violates state and federal law. However, the present lawsuit does not elaborate on the nature of Google’s alleged violations other than to say that the provider “intercepts” the emails.

As written, the complaint may not be sufficient to take the lawsuit very far. Under the precedent set by the U.S. Supreme Court’s decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, a complaint must make a “plausible” claim for relief to survive a motion to dismiss. To be plausible, a complaint must make allegations beyond mere legal conclusions; these conclusions must be supported by factual allegations. The bare assertions in the complaint as filed may fall short of this requirement, but the court may allow the plaintiff to amend the complaint and re-file it.

However, if this case shapes up like the other Gmail scanning cases, even a well-pleaded complaint may find difficulty winning the case on the merits, as explained in prior posts here on Onward.

Complaint in Scott v. Google, Inc.

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Yesterday, Google was named in a class action lawsuit by a plaintiff identified only as “A.K., as next friend of minor child J.K.” Filed in the U.S. District Court for the Southern District of Illinois, the lawsuit alleges that Google has violated (and continues to violate) the Electronic Communications Privacy Act of 1986 (the “Act”) and various state privacy laws by its “intentional and willful interception, scanning, and use of” emails sent to and from J.K., a minor child.

The plaintiff claims to represent similarly situated minor children in the state of Illinois and alleges, among other things, that Google’s Gmail product violates federal and state law. Section 2511 of the Act makes punishable anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.”

This is not the first time Google has been sued for Gmail’s use of email scanning to deliver personalized ads. In November 2010, Keith Dunbar filed a lawsuit in the U.S. District Court for the Eastern District of Texas alleging the same violations. The case was transferred in June 2012 to Judge Lucy Koh on the U.S. District Court for the Northern District of California and is still in discovery at the time of writing.

The present lawsuit differs from the original only in that it emphasizes the minority status of the alleged victim, but that is unlikely to make a difference in the outcome, if experts criticizing the original lawsuits are correct about their assessment of why Google is not violating any laws. In essence, experts and Gmail’s privacy policy concur that because no one actually receives the contents of any private emails other than the intended recipient, no laws are violated in the automated scanning of the emails for advertising purposes. Technology law expert Eric Goldman has described the Dunbar case as an “are-you-kidding-me?” case, so that does not bode well for the plaintiff in that case, or in the present one.

That this case involves a minor child (rather than an adult) should not make a difference in the interpretation of the federal statute, but it may affect the availability of state law remedies.

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A federal court dismissed Apple’s fair, reasonable, and non-discriminatory (FRAND) patent licensing claims against Motorola Mobility, Inc. this morning.

The case was dismissed ‘with prejudice,’ legalese that means Apple’s claims that the court threw out cannot be raised a second time in a different lawsuit.

A once sentence transcript of minutes from this morning’s 2 hour and 37 minute court hearing is succinct and to the point (read it below):


The exact reasons behind the court’s decision to dismiss this case will hopefully become clear after the court adds a detailed written opinion to the case docket detailing its legal reasoning behind.

Last week this blogger noted that FRAND disputes were being pursued in parallel litigation tracks in the U.S. and abroad.

On October 31, 2012, Apple declared told the court and Motorola Mobility that its competitor’s essential wireless patents in dispute are worth, at most, just one dollar per iPhone.

There were at least six lawyers at this morning’s hearing before U.S. District Judge Barbara B. Crabb in the Western District of Wisconsin — three for Apple and three for Motorola Mobility. Continue reading →

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After three years, language-learning software company Rosetta Stone settled its trademark lawsuit against Google over the company’s Adwords advertising program. (read the settlement below).

The litigation rollercoastered during that time. The U.S. District Court for the Eastern District of Virginia granted Google’s motion to dismiss Rosetta Stone’s lawsuit on August 2, 2010, and the Rosetta Stone appealed the dismissal. In April 2012, however, the U.S. Court of Appeals for the Fourth Circuit reinstated three (3) Rosetta Stone claims for direct infringement, contributory infringement, and trademark dilution.

Unfortunately, here is why the undisclosed terms of their settlement agreement won’t give any more insight into preventing online advertising trademark litigation in the future.

Eric Goldman’s April 2012 critique of the Fourth Circuit’s opinion provides an excellent roadmap to unresolved legal issues in trademark disputes over online advertising. Since the Fourth Circuit’s reasoning in Rosetta Stone just muddled some of theses issues even more, their clarification and resolution will have to wait for another day in court.

First, Goldman argues, Google shouldn’t be held liable for direct trademark infringement for conduct of advertisers using keywords in Adwords ads. Assuming that consumers even get confused upon viewing an ad, he posits, it’s the fault of the advertisers themselves. “Google is at most secondarily liable for that,” he reasons. The appellate court doesn’t even discuss this possibility. Nor does it clearly address the meaning of “trademark use in commerce,” Goldman argues.

Second, the appeals court came up with its own definition of contributory infringement, and concluded that “the evidence was sufficient” for a jury to find contributory negligence, and remanded the case back to the District Court to determine if that was the case. But, in my opinion, that didn’t appear justified. The District Court found that:

“[t]here is little Google can do beyond expressly prohibiting advertisements for counterfeit goods, taking down those advertisements when it learns of their existence, and creating a team dedicated to fighting advertisements for counterfeit goods.”

Honestly, what else can an online advertising service do?

Finally, as to trademark dilution, Goldman maintains that “[c]haracterizing keyword ad sales as dilution is unprecedented and virtually unsupportable doctrinally. [The Fourth Circuit] opinion doesn’t address that.”

Online advertising isn’t going to disappear anytime soon. Nor will online trademark infringement lawsuits over the ads. Facebook and online agency adSage were hit with a similar trademark lawsuit several weeks ago. The murkiness continues.

Stipulation and Order of Voluntary Dismissal with Prejudicie (Rosetta Stone, Inc. v. Google, Inc.)

Image credit: 3dsguru via iStockphoto

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On Monday, Apple filed an Ex parte application for discovery against Motorola Mobility (‘Motorola’) to defend against the Google subsidiary’s patent claims in Germany. Motorola’s claims allege that Apple’s iPhone and iPad wireless devices infringe two of the company’s European patents.

One central Apple legal defense to Motorola’s European patent claims is that the telecommunications hardware maker would not offer it fair, reasonable, and non-discriminatory (‘FRAND’) licensing terms over the wireless patents in dispute, “in violation of German and European antitrust laws.”

FRAND contract disputes also remain an issue in the companies’ U.S. patent lawsuits. In Wisconsin, for example, Apple declared today that Motorola’s essential wireless patents are worth, at most, only one dollar per iPhone.

Motorola’s European patents at issue involve:

  • EP 1 010 336 (the ‘336 patent) — Method for Performing a Countdown Function During a Mobile-Originated Transfer for a Packet Radio System
  • EP 1 053 613 (the ‘613 patent) — Method and System for Generating a Complex Pseudonoise Sequence for Processing a Code Division Multiple Access Signal

The relief sought by Apple under 28 U.S. § 1782 is commonly used when parties litigating abroad can assist foreign courts with relevant information in dispute, the request is reasonable and narrowly tailored, no foreign prohibition exists against the request, and no foreign prohibition exists against the request. Continue reading →

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According to a new infringement lawsuit filed Tuesday in federal court (read it below), the Google Wallet app violates a Canadian resident’s U.S. patent.

Plaintiff Peter Sprogis holds U.S. Patent No. 7,298,271 for a “Method and apparatus for providing awards using transponders.” The ‘271 patent abstract describes a customer loyalty program using ‘electronic data storage elements’ (EDSE) like RFID tages can be used to encourage customer loyalty by offering coupons or loyalty points for visiting a business.

Sprogis accuses Google of infringing at least nine claims listed in his patent.

The plaintiff’s claims appear to paint a wide swath over Google’s app. Google Wallet enables Android phone users to securely store credit and debit card information on their mobile devices to shop locally as well as online. Continue reading →