Google’s Patent on Censorship
By Hui W.
In the last few months, Google and the Chinese government have argued over the cyber-attack allegedly coming from the Chinese government. As a result, Google has announced that it no longer censors web search result through Google.cn, the subsidiary of Google in China. If the Chinese government prohibits free access of Google.cn search results, Google would withdraw completely from the Chinese market. The bold and public show of defiance has won Google applause all over the world; especially because China is the fastest growing economy and Western companies have bent over backwards to follow the suppressive laws and regulations of the Communist government. The move has boosted Google's image as a new kind of company, and that its motto of "do no evil" is not just empty words, but the guiding principle it follows in its operations.
Yet in the midst of the campaign against Internet censorship of the Chinese government, Google quietly obtained a US patent grant entitled "Variable user interface based on document access privileges" on February 16, 2010. The patent is for a way to change what a reader can see based on "geographical location information of the user" or "access rights possessed for the document." In other words, Google is patenting a censoring technology that blocks or allows access to content of its search results depending on where the user is coming from. The irony is inescapable: If censorship is so bad that Google is willing to cease operations in a country to protest, why does Google want the right to exclude the very definition of patent?
Google's patent also raises several interesting legal points about Internet patent. At first glance, we may say that technological progress has removed the validity of one argument from some of the earlier cases. In 2000, Yahoo! was sued in France for failure to filter out Nazi memorabilia items from its website if an Internet user accessed Yahoo.com from France. The reason is that in France the displaying of Nazi memorabilia is illegal, and by allowing French Internet user to see Nazi memorabilia in France, Yahoo.com violated French law, La Ligue Contre Le Racism v. Yahoo! Inc. (Paris 2000). One defense Yahoo! argued was that it had no technology to filter out content based on where the Internet user was coming from. The court ultimately did not accept this argument, and stated that if Yahoo! could show advertisements in French when the Internet user was from Yahoo.fr, it should be able to block Internet content too.
The Google patent shows that, unequivocally, the technology to "censor" content online based on user location is available, and that not blocking content is a choice and not a technical limitation.
Another interesting legal issue created by this patent, involves the interaction between copyright and patent laws on the Internet. Google's patent provides a way to alter website content, and it is plausible that the alteration may violate the copyright of web content owner. One of the rights that a copyright owner gets is the adaptation right: the right to authorize or refuse to authorize a derivative work, which in any manner recasts, adapts or transforms the original work, such that the resulting work is substantially similar to the original work. Formatting a website with reduced content is an alternation. The alternation arguably is adaption, transformation, or recasting. A copyright owner may make a colorable claim that "new" web content formed after Google's alteration is a derivative work generated by Google, and Google's action violates the copyright owner's adaptation right.
Google may counter such a challenge by arguing that the patent is specifically limited to comply with “applicable copyright laws” as specified in the Claim 1 of the patent. Arguably, the location based filtering is out of necessity due to difference in copyright law among various countries. An often mentioned example on the inconsistency of copyright term is that “Happy Birthday to You,” probably surprising to most, has a valid copyright, and the copyright lasts until 2030 in US while only until 2016 in Europe. On the Internet, suppose a user tries to access with the tune embedded on a website in 2017. If the user is from say France, an EU country, Google may grant access so the tune would be played when the user views the website; if the user is from US, the same website can still be accessed, but the tune could be blocked using Google patented technology, due to violation of public performance right of a work under existing valid copyright. In application like this, Google may argue, the patent helps compliance with copyright law, not violating it.
Morality aside, it’s hard to tell if Google’s patent would violate any intellectual property law in the United States. Obviously, Internet access has worldwide implications, and it remains to be seen if a patent like this would violate the law somewhere outside of the U.S.; and if it does violate the law in another jurisdiction, what the results of this conflict would be.
