Document Type

Article

Publication Date

2006

Keywords

search engines, Fair Credit Reporting Act, due process, intellectual property, antitrust, First Amendment, expression, copyright, trade secret, Google, competition, network effects

Abstract

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on the objectionable result. In the latter case (deemed exclusion harm), complainants should have some right to a limited explanation of why they did not appear in highly ranked results. Both these rights are based on consumer protections guaranteed by the Fair Credit Reporting Act.

Given extraordinary advances in the annotation software of wiki's, these basic prerogatives ought to be relatively easy to implement for trademark holders and vanity searches (relating to an individual's name). But even if these particular proposals are deemed implausible, they do focus attention on matters of principle that will have increasing importance in coming years: the degree of copyrightability and First Amendment protection of search engine rankings and other machine speech resulting from computerized algorithms. Given the rapidly growing importance of rankers and other aggregators of information, law should not lightly permit machine expression to garner these protections. Rather, they are merited to the extent that rankers are responsible, reflecting actual human judgment and providing due process to those harmed by inclusion or exclusion in relevant results.

Publication Citation

54 Cleveland State Law Review 115 (2006).

Disciplines

Antitrust and Trade Regulation | Commercial Law | First Amendment | Intellectual Property Law

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