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Why are publishers and authors up in arms about the Google Book Search, which will make digital copies of millions of books searchable online? In a practical sense, Google Inc. is doing to books what it has already done to Web sites. One key difference is that the book search will allow users to glimpse merely brief portions of books, while Google indexes Web sites in their entirety. Yet publishers and authors cry foul because many of the books are protected by copyright, and Google, no matter that it claims to be serving the public interest, has crossed a line by pre-emptively copying the intellectual property of other parties without their prior consent. It does seem rather presumptuous of the youthful but mighty Google to seize and scan the contents of every volume in the Harvard, Stanford, Oxford, University of Michigan and New York Public libraries. But we should bear in mind that Google is not doing anything fundamentally new by indexing these books. It has simply expanded into a new medium, just as it and similar enterprises intend to make other information mother lodes (genetic code, cartography, reams of historical records) searchable. That said, outrage over the book search has merit; it should help us acknowledge that many Web enterprises today operate on the assumption that a party can be exploited without the party’s prior consent. On the Internet, silence is often equivalent to acceptance. This protocol, long used in back corners of the Web, is making a more public debut in driving the book search. An author must learn about Google’s activities and then find a way to enforce his or her rights against the company. Some call this the opt-out approach. You could also call it a subversion of legal precedent. Again, there is nothing drastically new in this. Every hour, many Web sites and Internet applications use “electronic agents,” programs that interact with software and hardware belonging to others. The webcrawler is a prime example; it is used by search engines to collect information off computers around the globe. It and other agents are legally problematic because they operate according to the acceptance-by-silence dynamic. If Company X does not expressly forbid (or take security measures to prevent) its Web site from being indexed, a search engine will use data obtained from that site for commercial gain. This approach is so intrinsic to the infrastructure of the Internet that we don’t realize how much it diverges from our social and legal norms. It has long been unacceptable when forming contracts. Every law student who has taken a contracts class knows that a contract cannot be formed by a participant’s silence. There must be a manifestation of assent, such as a signature, to establish an agreement between two parties. Web developed as public realm It’s important to note that Google is not responsible for the prevalence of the acceptance-by-silence protocol on the Web. During the net’s infancy, government and academic scientists used the Web to perform document research, collaborate, and archive and retrieve research results in the name of a common objective-scientific advancement. The Web became by default a public realm. As the Internet evolved from an academic institution into a commercial juggernaut, the “handlers” of the Internet continued to treat the Web like a public realm. Today, electronic agents scour the Web every second, gathering and exploiting information for a variety of ends. Now, though, we find that this protocol leaves inexperienced Internet users vulnerable and some experienced ones desensitized to the hazards of the opt-out process when applied to the nondigital world. Not all electronic agents are benevolent. Adware, spyware, e-mail harvesters and malware are all forms of agents that do not allow people to opt out. Other agents copy and archive old versions of Web pages, making sometimes unwanted information accessible. To stop these infiltrations, one can deploy sophisticated security measures, but such steps are unfamiliar to and beyond the capacity of average users. Keep in mind that in the tangible world, people do not have to enact security measures to avoid entering into a contract. No matter what their purpose, those who use electronic agents tacitly are telling us: “I have the right to exploit you unless you stop me.” That this protocol subverts fundamental tenets of law has been ignored for years because it has led to useful tools and economic opportunity. The litigation sparked by the Google Book Search is but one sign that we as a culture have for too long taken the opt-out protocol for granted. Another was a 2000 case in which eBay Inc. sued Bidder’s Edge Inc. for using spyware to search eBay’s Web site intensively to gather product and price information. eBay employed a novel and ultimately successful argument, charging Bidder’s Edge with illegal trespass of chattel-the trespass of or interference with real property, be it animals or, in this case, servers. Pursuing propagators of spyware and malware, e-mail harvesters and Web site archivists with a charge of illegal trespass may seem unusual, but it makes sense. As companies deploy electronic agents more brazenly, we are likely to see more of these claims. In the meantime, the technology industry should come to terms with the dangers of the silence-equals-acceptance protocol or empower users to prevent this type of exploitation. The industry should begin by avoiding this standard whenever possible. If it fails, state and federal regulators may feel the need to intervene with legislation targeting the acceptance-by-silence dynamic. Certainly, this dynamic has facilitated the development of remarkable applications, but it has also set the stage for the exploitation of others the world over. William A. McComas, a partner in the Baltimore office of Shapiro Sher Guinot & Sandler and a former computer engineer, counsels clients ranging from entrepreneurs to Fortune 100 corporations on creating, protecting, acquiring, developing and commercializing technology and intellectual property assets. He can be reached at [email protected].

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