On Tue, 15 Apr 1997, Rebecca Tushnet <rebecca.tushnet[_at_]yale.edu> wrote:
>
> Suppose I create a page that allows a visitor to type in one
> search, which will automatically be sent to six of the Internet's
> top search engines. In seconds, the page will display the
> results--duplicates removed--with labels identifying which search
> engine retrieved which URLs. At the bottom of each page of results,
> this mega-search "collator" (it's not really an engine in the same
> way that the engines it bases itself on are, of course) displays
> the six ads one would have seen had one visited the sites oneself.
>
> Infringing derivative work, or fair use?
See MetaCrawler's FAQ and specifically the question, "Why are you passing through ads? The old MetaCrawler didn't do that."
http://www.metacrawler.com/faq.html
See AltaVista's Rules of Use, and specifically:
"The AltaVista search engine and the AltaVista index are the property of Digital Equipment Corporation. You may not, without express permission from Digital, take the results from an AltaVista search and reformat and display them. You also may not mirror the AltaVista home page or results pages on your Web site."
http://www.altavista.digital.com/cgi-bin/query?pg=tmpl&v=legal.html
Actually, MetaCrawler uses AltaVista as one of its search engines, so one assumes that the two came to some sort of agreement. Without answering Rebecca's question (which is loaded, actually, because it doesn't include the possibility of no infringement at all), my belief is that, as a policy matter, these types of issues are best handled by agreements.
But if such an agreement didn't exist and the search engine owner was unhappy with the metasearch owner, you are back to Rebecca's question. The analysis is similar to the TotalNews issues. One party (metasearch) is using another party's content without permission. There are differences, though. First, in TN the entire content is being taken, whereas with the metasearch only a small amount of content is being taken, although one could argue that it is the most important content. Second, the formatting of that content is much more altered than it is in TN. Third, I think what is happening is less confusing to the user in the search context than in TN, that the user is much more aware that the search engines are being used. That last difference is much more applicable to non-copyright issues. Another difference is that in TN nothing was being copied by TN to its own server. Therefore, many people contend that no reproduction right was violated. In the metasearch example I'm assuming that the results of the search engines are stored on the metasearch's server before being reformatted and passed to the user. If that is so, then without even looking at whether the end product is a derivative work, does it violate the exclusive reproduction right of the search engine? Interestingly enough, what is really being taken is content that was already taken by the search engine itself. Most people assume that *that* content was impliedly, permissibly taken because the pages being searched for want to be found, but it is an interesting point.
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