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Chapter 5
e) Search Engines
Search engines play an important role in driving Internet user traffic to both legitimate and illicit
goods and content. In an effort to prevent consumer confusion as to the legitimacy of copyrighted
content on the Internet and promote legitimate content-providing services, such as Netflix and
Hulu, rightsholders are actively submitting search removal requests to Google, Bing and other
search engines. These notices identify specific search results that link to infringing material and
request removal of these links from search engine results.
Similarly, sites selling counterfeit versions of products bearing the rightsholders’ trademarks are
often delivered as high-ranking search results, or results promoted because of keyword advertising.
In such cases, Google has argued that using trademarks to serve advertising in sponsored links does
not qualify as a “use in commerce” and thus does not constitute infringement. 124 The Second
District court in Rescuecom disagreed with Google’s position and found that Google’s display,
offering and selling of plaintiff’s mark to Google’s advertising customers qualified as a “use in
commerce.” 125 Following the ruling of the court, the parties in this matter settled the case. 126
Nevertheless, rightsholders may submit complaints to Google for links in the sponsored ad results
that violate a brand’s trademark. Google will then investigate these complaints and may restrict the
use of the trademark in Google’s ad campaigns. 127
Google publishes copyright removal referrals it receives from copyright owners and reporting
organizations in its Google Transparency Report. 128 According to this report, between March 1 and
March 14, 2013, Google received over 15 million requests to de-list search links to content on
approximately 3,700 domains. 129 These referral requests were sent on behalf of over 2,500 copyright
owners.
In a press release issued in August 2012, Google announced it would begin to factor in the number
of copyright removal requests a website received in its search algorithm. 130 According to Google,
this would cause websites which receive a high volume of removal notices to appear lower in
Google’s search result rankings and “should help users find legitimate, quality sources of content
more easily.” 131
In testing that claim, the RIAA measured over six months the impact of its Google search removal
requests and the ranking of the referred websites in search. The findings published by the RIAA
were not encouraging and ultimately found “no evidence that Google’s policy has had a demonstrable
impact on demoting sites with large amounts of piracy.” 132 Rights owners invest substantial
time and resources in sending such a high volume of search removal requests pertaining to PFWs
but it seems to have little impact on the prevalence of PFWs in search returns. 133 According to
Google’s Transparency Report, the site for which Google has received the most removal requests
(over 4.3 million in the past year) is filestube.com, 134 which apparently continues to receive over
17% of its upstream traffic directly from Google Search results. 135
f) Domain Registrars and Domain Proxy Services
Historically, domain-name based anti-infringement initiatives, like the Uniform Domain-Name
Dispute-Resolution Policy (“UDRP”), have focused on addressing trademark infringements contained
in domain names themselves, offering relief only in the case of PFWs who infringe brands in their
choice of domain names (e.g. www.piratedDisneymovies.com). However, several U.S.-based domain
registrars, such as GoDaddy, have created and implemented streamlined complaint forms for the
submission of broader complaints of trademark or copyright infringement. 136 Penalties for violating
the terms of services of such registrars, including through copyright and trademark infringement, may
involve a suspension of the registrar services that will lead to a disruption in the PFWs operations.
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