The judge in the SearchKing v. Google case has denied SearchKing’s request for a preliminary injunction. (See the bottom of this posting for background on the case.) James Grimmelmann at LawMeme analyzes the ruling. The court ruled that Google’s page rankings are opinions and so are protected by the First Amendment.

It’s interesting that the court found the page rankings to be opinions, even though they are generated automatically by a computer algorithm. In other words, page rankings don’t necessarily reflect the judgment of any person or group of people (at least not directly), except in the metaphysical sense that Google’s algorithm extracts the collective judgment of all of the webpage authors in the world.

A person identifying him/herself as a lawyer for SearchKing comments on the LawMeme site:

As Search King’s attorney, I can tell you a Rule 59 Motion to Alter Judgment was filed along with Search King’s Response to the Motion to Dismiss. In those pleadings we show the Court Google has a patent on PageRank. It also has been presented by its “inventors” as truly objective. (how does one “invent” an opinion?) If Google continues on its path of First Amendment protected opinion, there could be objections to its patent filed. Something to ponder….

It seems to me perfectly consistent to say something is an opinion and that it was arrived at by an objective procedure. Anyway, isn’t SearchKing’s whole case predicated on the claim that Google is not treating SearchKing objectively?

[Background on the SearchKing case: SearchKing sells a service that claims to raise people’s page rankings on the Google search engine. Google adjusted their page ranking algorithm to demote SearchKing’s pages. SearchKing sued Google, asking the court to grant a preliminary injunction requiring Google to restore the page rankings of SearchKing’s pages. The judge just denied that request. Google’s motion to dismiss is apparently next on the agenda.]

The EFF has posted a copy of the New York state court’s ruling in the Network Associates case that I wrote about previously.

The court’s ruling makes three main points. (1) The contract clause, which forbids customers from reviewing the product or publishing the results of benchmarking it, is unenforceable. (The court doesn’t expand on why it is unenforceable.) (2) The clause was written in a way that tends to deceive customers into thinking that there are other legal “rules and regulations” outside the contract itself that ban unauthorized reviews; writing the clause this way is a deceptive business practice and thus illegal under New York law. (3) Network Associates must remove the clause from its contracts (which it says it has done already, though there is some evidence to the contrary); it must inform the New York Attorney General in advance before using any language that bans reviews; and further proceedings will be held to determine what if any fine to impose on it.

No-benchmark clauses are pretty common in licenses for database products. This has been a major impediment to database research. Several researchers have pondered challenging these clauses, but none have done so. Perhaps this ruling will help free database researchers to do quantitative work on commercial systems.

A court has thrown out a software contract clause prohibiting customers from publishing reviews of a product, report Matt Richtel at the New York Times and Lisa Bowman at CNet.

A New York state court made the ruling in a suit brought by the New York Attorney General’s office. The clause in question says, “The customer will not publish reviews of this product without prior consent from Network Associates Inc.”

Richtel reports that the court found the clause to be “deceptive.” I haven’t found a copy of the court’s opinion, so I can’t be sure what exactly that means. But the New York Attorney General had argued that the clause was clearly unenforceable, so that inserting the clause was essentially a way to trick users into believing it was illegal to review the product.

More on this once I find a copy of the court’s opinion.

The conventional wisdom is that yesterday’s deal between the RIAA and tech companies includes an agreement to oppose government mandates of DRM such as the Hollings CBDTPA. But look at this sentence from paragraph 6 of the joint statement (italics added):

The role of government, if needed at all, should be limited to enforcing compliance with voluntarily developed functional specifications reflecting consensus among affected interests.

This is suspiciously close to the approach taken by the Hollings CBDTPA, under which industry groups would have been asked to agree on a DRM “standard” and then government would have mandated compliance with it. (The only difference I can see is that the CBDTPA had a backup procedure under which the government would have chosen the “standard” if industry failed to agree.)

Now, you may object that the “if needed at all” clause weakens my argument. But bear in mind that they could just as well have omitted the quoted sentence entirely. Had they done so, the document would have been clearly opposed to mandates. Instead, they chose to put the sentence in, indicating at least some support for CBDTPA-like regulation.

This is consistent with the phenomenon I noted in my previous posting: the goal is not to prevent or reduce regulation, but to make sure that the regulatory framework can move only in the direction the signatories want.

Often, when people say they oppose regulation, what they really mean is that they like the regulation we already have and don’t want it changed. By implicitly defining “regulation” to mean changes in regulation, they make anti-regulation rhetoric serve a pro-regulation cause.

Yesterday’s statement of principles from the RIAA and some tech companies provides a great example of this. Here is the most-quoted sentence from the statement:

How companies satisfy consumer expectations is a business decision that should be driven by the dynamics of the marketplace, and should not be legislated or regulated.

If they really believed this as written, they would support a repeal of the anti-trafficking provisions of the DMCA. If companies want to support consumer expectations for personal use of DRM-protected content, their decision to provide devices that do so should be driven by the dynamics of the marketplace, and should not be legislated or regulated by the DMCA, right? Yet that is not the RIAA’s position.

The pro-regulation argument is hidden here (italics added):

Legislation should not limit the use or effectiveness of [DRM].

If “legislation” is read as “new legislation” then this would seem to lock in the pro-RIAA regulation that already exists, as any rollback of existing pro-RIAA regulation would limit the effectiveness of the RIAA’s attempts to get what it wants in interactions with consumers. Naturally, it’s a one-way ratchet – legislation that improves the RIAA’s position isn’t a problem, but legislation that moves in the other direction is objectionable. When you stop and think about it, this is a pretty cheeky argument.

Some reporters have fallen for the “anti-regulation” spin on the statement. For example, an AP story on the statement says

The agreement attempts to head off government intervention in the rising debate over what consumers can do with copyrighted material they have purchased.

It’s too late to head off government intervention. Maybe we could start by fixing the problems that intervention has already caused.