Google Autocomplete and the Potential for Defamation

Autocomplete is a feature provided by many search engines that uses an algorithm to automatically display search suggestions to fill queries as information is inputted. These search suggestions are based on a user’s search history, popular search queries, and a number of other objective factors. Autocomplete is an extremely useful search tool, as it may accelerate and refine searches in ways users would not expect.   However, despite its benefits, autocomplete has been the subject of controversy. Autocomplete can be potentially defamatory if your name or company is autocompleted with something negative. Even assuming the negative information is false, the suggestion alone has the power to completely destroy your reputation.

Autocomplete was originally implemented to help people with disabilities increase their typing speed and reduce the number of keystrokes needed in order to complete a word or sentence. It quickly became clear, however, that autocomplete served a purpose for all Internet users. Autocomplete operates so that when a user inputs the first letter or word into the search bar, it predicts one or more possible words to fill the query. If the user intends to type what appears in the list, he can select it. If not, the user must type in the next letter of the word. As each additional letter is entered into the search box, autocomplete automatically alters the search suggestions in the drop-down menu. Once the word or phrase that the user intends to search appears, he can select it and press “Enter” to complete the search.

Autocomplete search suggestions are generated by an algorithm that takes into account a number of objective factors, such as a user’s previous searches and popular search queries.  Other criteria are also factored into the ranking, such as the user’s location and a search term’s “freshness.” In addition, the algorithm automatically detects and filters out a small set of search terms related to pornography, violence, hate speech, and copyright infringement.

Around the world, Google has been subjected to defamation lawsuits based on the content that automatically appears as Internet users input their search queries into Google’s search box. Even though the content in Google’s search suggestions is mainly based on information inputted by third parties, plaintiffs have sued Google on the grounds that it “controls, “creates,” or “publishes” the information through autocomplete. Plaintiffs’ arguments are based on the fact that Google uses an algorithm to aggregate, synthesize, and reconstitute input query data prior to publishing it in its autocomplete search suggestions. Google also consistently updates and improves its algorithm. Plaintiffs argue that by using artificial intelligence, which Google itself creates and maintains, to actively facilitate searches, Google does more than simply convey third-party information. Therefore, it should be held liable for any defamatory content displayed.  Most foreign courts have accepted this argument and found Google liable, forcing it to either remove the defamatory material upon request or otherwise modify its autocomplete algorithm. Continue reading Google Autocomplete and the Potential for Defamation

Food Plating and Trade Dress: Can a Chef Claim Trademark Protection for a Signature Dish?

In America’s burgeoning foodie culture, food is increasingly being embraced as art. At many high-end restaurants, food is intricately created, carved and designed, and placed with artistic precision and perfection on each plate before being delivered to diners. Color combinations, along with textures, layering, and placement are all considerations a chef uses to create artistically designed dishes. Recently, The Drawing Center in Soho, New York City exhibited the work of Ferran Adria, chef of famed Spanish restaurant El Bulli, demonstrating that Adria’s work at El Bulli had “transcended mere hospitality” and that Adria had achieved the status of artist. But is the presentation of food, intended for eating, considered “art” worthy of intellectual property protection? This post briefly examines whether chefs can protect their food presentation under U.S. trademark law. For a full discussion of chefs’ rights (or lack of rights) to protect food presentation under U.S. copyright law, trademark law, and design patent law, please see Food Art: Protecting Food Presentation Under U.S. Intellectual Property Law.

In 2006, a scandal erupted in the culinary world. Commenters on the popular cuisine blog, eGullet, accused Robin Wickens, famous chef at (now closed) Interlude restaurant in Melbourne, Australia of serving dishes copied from renowned American chefs Wylie Dufresne, Jose Andres, and Grant Achatz. It is not uncommon for chefs to borrow recipes from other chefs, and there has been a long culture of sharing in the cuisine industry. However, what made Wickens’ actions scandalous was that he had purportedly copied the artistic presentation and plating of other chefs’ dishes, not just their recipes.

This is not the only time a chef was accused of copying another chef’s food plating. Continue reading Food Plating and Trade Dress: Can a Chef Claim Trademark Protection for a Signature Dish?

Collective Bargaining and Student Athletes

Recently, Edward O’Bannon, at the age of forty-one and working as a car salesman in Las Vegas, recognized himself in a video game. He became distressed and concerned that his likeness was being used without his consent—and without any form of compensation. Mr. O’Bannon is a former student-athlete who led the University of California, Los Angeles (“UCLA”) to victory in the 1995 National Collegiate Athletic Association (“NCAA”) championship in his senior season. Mr. O’Bannon was considered a fantastic player in the tournament and a “consensus all-American.”[1] In turn, he was drafted ninth by the New Jersey Nets, but his professional career fizzled out and never quite matched the expectations set by his excellent undergraduate career. Continue reading Collective Bargaining and Student Athletes

Why the Current Trademark Disparagement Analysis Needs to be Revamped

In June 2014, the Trademark Trial and Appeal Board (TTAB) shocked football fans everywhere when it granted a petition to cancel six Washington Redskins trademark registrations. Filed by Navajo Amanda Blackhorse and four other Native Americans, the petition sought to cancel the registrations on the grounds that they disparaged the Native American people; all six of the registrations included the term “redskin”, and two included the team’s logo (a Native American chief).

The TTAB granted the petition based on the results of a two-part disparagement analysis. First, the TTAB considered the likely meaning of the term as it was used in the marks, and how the marks were used in connection with entertainment services (i.e., the services for which the marks were registered). The TTAB then evaluated whether the likely meaning of the term was disparaging to a substantial composite of the Native American population. After completing both prongs of the analysis, the TTAB concluded that all six registrations disparaged Native Americans at the time of registration and therefore violated federal law. On this basis, the TTAB granted the petition. Continue reading Why the Current Trademark Disparagement Analysis Needs to be Revamped

“Woman in Gold”: Hollywood Explores the Restitution of Nazi-Stolen Art

The Nazi art confiscations and forced sales that occurred during World War II have been described as “the greatest displacement of artwork in human history.”[1] It has been estimated that between the years of 1933-1945, German forces, along with other Nazi agents, seized or forced the sale of approximately one-fifth of all Western art that was in existence at the time, a total of nearly 650,000 works then worth approximately $2.5 billion. Today, the looted art is valued at approximately $20.5 billion, with more than 100,000 works of art still unaccounted for.[2]

After World War II, the Allied Forces, along with several other governments of the United Nations and the French National Committee, entered into various voluntary post-war agreements and committed to the fair and just restitution of Nazi-looted art. One such post-war agreement was enacted in December 1998, when the United States State Department sponsored The Washington Conference on Holocaust Era Assets. The purpose of the conference was to develop a consensus to assist in the resolution of complex issues regarding the repatriation of Nazi-stolen art.[3] There, the United States and 43 other countries adopted the eleven protocols introduced at the Conference, known as the “Washington Principles,” and committed to searching for Nazi-stolen art in their public art collections and to resolve Holocaust restitution claims justly and fairly.[4] The Washington Principles are based on two fundamental propositions: “[a]rt museums and their collections should not be built with stolen property [and] that passion for art should not displace respect for justice.”[5] Continue reading “Woman in Gold”: Hollywood Explores the Restitution of Nazi-Stolen Art

The U.S. is Net-Neutral. The Rest of the world? Maybe Not So Much.

Last month, the Federal Communications Commission (“FCC”) voted to regulate Internet service as a public utility. This move helps ensure that Internet service providers do not block content or divide the web into fast lanes for Internet and media companies that can afford it and slow lanes for everyone else.

This is the second time the FCC has tried to implement net-neutrality. In December of 2010, the FCC instituted regulations for Internet Service Providers (“ISPs”) like Verizon and Comcast while still categorizing the Internet service industry as information services. In January 2014, a court ruled that while the FCC had the general authority to regulate Internet traffic, it could not impose net-neutrality on ISPs if they were being classified as information services. Instead, to impose tougher common-carrier regulations outlined in Title II of the 1934 Communication Act, the FCC must classify the ISPs as common carriers. This shift to common carrier status is the change the FCC made last month. Continue reading The U.S. is Net-Neutral. The Rest of the world? Maybe Not So Much.

Use of Copyright Law to “Take Down” Revenge Porn

The past year has shown that for many female celebrities, privacy in their personal photos and videos might be one of the few luxuries that they cannot afford. In late August of last year, hundreds of nude images of alleged household names, such as Jennifer Lawrence, were released on the Internet without the women’s permission. But celebrities are not the only targets of this severe invasion of privacy. Every year, tens of thousands of non-celebrities around the world have had their private photos posted on the Internet without their permission. Though undeniably a terrifying and absolutely devastating experience for most people facing such a situation, both celebrities and ordinary women have very limited legal recourse against the individuals that posted the photos, and even less still against the websites that host the images. This is because no single law, state or federal, criminal or civil, is currently capable of granting a victim the remedy they most likely desire: to have the unauthorized images completely removed from the Internet. Continue reading Use of Copyright Law to “Take Down” Revenge Porn