State Law Privacy Claims Still Baking in Google Cookie Suit

Consumers brought a class action case against Google, alleging that Google placed tracking cookies on users’ web browsers by disabling users’ cookie blockers, in contradiction to Google’s privacy policy statements.  In particular, users allege that Google discovered and surreptitiously exploited loopholes in the Safari cookie blocker and the Internet Explorer cookie blocker.  But on its public webpage describing how to block cookies, “Google assured visitors that ‘Safari is set by default to block all third party cookies. If you have not changed those settings, this option essentially accomplishes the same thing as setting the opt-out cookie.’” (Opinion pdf pages 8-9).  Google’s private actions allegedly contradicted its public statements.

The users alleged a number of federal and state law violations by Google.  The district court dismissed all claims against Google.  The Third Circuit reversed as to the California Constitution privacy and California tort law intrusion upon seclusion claims.  This post discusses only those two state law claims.

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Google’s Book Digitizing Activities Ruled Fair Use

Authors of published books under copyright sued Google for copyright infringement, alleging that Google’s book copying activities for Google’s Library Project and Google Books project infringe the authors’ copyrights.  In Authors Guild, Inc. v. HathiTrust, authors alleged that the HathiTrust violated the authors’ copyrights by allowing Google to electronically scan HathiTrust members’ book collections and create a repository of the scanned works.  The Second Circuit ruled in that HathiTrust’s activities were fair uses.  It’s no surprise, then, that the Second Circuit also ruled in this case, Authors Guild v. Google, Inc., that Google’s activities were fair uses.  The Second Circuit’s ruling in the Google case is closely related, but not identical, to its ruling in HathiTrust.  My post, HathiTrust Book Scanning Ruled Fair Use, discusses the Second Circuit’s ruling in HathiTrust.

The opinion in the Authors Guild v. Google case was written by Second Circuit Judge Pierre N. Leval.  Judge Leval created the transformative use test as a way of determining whether a later work made fair use of a preceding work.  He described the transformative use test in his law review article, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).  The U.S. Supreme Court frequently referred to Judge Leval’s law review article in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).  In Campbell, the Supreme Court adopted the transformative use test in ruling that 2 Live Crew’s commercial parody of Roy Orbison’s song, “Oh, Pretty Woman,” was a fair use.

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Fair Use Protects Copyright Holder of Unauthorized Parody

The Second Circuit began its opinion with its intriguing ruling:

The primary question presented is whether an unauthorized work that makes ‘fair use’ of its source material may itself be protected by copyright.

We hold, for substantially the reasons stated by the United States District Court for the Southern District of New York (Thomas P. Griesa, Judge), that, if the creator of an unauthorized work stays within the bounds of fair use and adds sufficient originality, she may claim protection under the Copyright Act, 17 U.S.C. § 103, for her original contributions.

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