Search engine security measures arouse disputes

The search engine has become an important tool for internet users. For a company, the ranking of its web pages in key word search results is extremely important. Search result rankings offer commercial opportunities, and the position in a ranking can have an effect on the public’s perception of a company.

However, phishing and Trojan horse websites show up in some search results, posing a threat to the safety of internet users’ computers and data. For computer security software providers, ensuring the safety of search results has become an important business. Security providers attempt to protect search results by adding a mark at the right hand side of any result suspected of being a phishing or Trojan horse website. If the user clicks on the link, the software gives a warning, but if the user ignores the warning and clicks through, the software allows the request to proceed. This form of protection can reduce the number of click-throughs and thus reduce a search engine’s revenue, which is often based on that number.

The above raises a question. If a search engine sues a security provider on the grounds of copyright infringement or unfair competition, how are the legal issues this raises to be dealt with?

Copyright on search results?

Current laws are silent on whether a search result, as a particular form of expression of a web page, constitutes a compilation work. However, in the copyright infringement and unfair competition case in which Beijing Baidu Netcom Science and Technology sued Shanghai Henbang Information Technology, the Beijing First Intermediate People’s Court held that a Baidu search result page was a compilation work and was protected by copyright.

We have a different opinion. Article 14 of the PRC Copyright Law (as amended in 2010) specifies that a compilation work means a “compilation of several works, or of extracts from works, or of data or other materials which do not constitute a work … provided that it shows originality in terms of the selection or arrangement of their contents”. Whether the arrangement of search results by a search engine “shows intellectual creativity and originality” should thus be the key to determining whether search results constitute a compilation work.

At present, search engines rank search results in one of two ways: bidding rank and natural ranking. Bidding rank is a profit-making model in which the more a customer pays, the closer to the top of the search result its name appears. Natural ranking, on the other hand, is a non-profit model, in which the owners of the websites that are displayed are not charged a fee, and may refuse to be displayed. Under the natural ranking method, rankings are determined by the ranking algorithm set by the search engine service provider.

Baidu insists that the rankings of its search results are natural rankings based on publicly available “search engine ranking algorithm rules”. In the unfair competition dispute in which Beijing Maple Capital Travel and Cultural Exchange sued Baidu Online Network Technology (Beijing) and Beijing Baidu Netcom Science and Technology, the Beijing First Intermediate People’s Court also held the rankings of the Baidu search engine to be natural rankings. Since search result pages are generated automatically based on preset rules, if it can be held that a page does not show any intellectual creativity, it cannot be defined as a compilation work.

Unfair competition

Both being internet service providers, the factor determining whether unfair competition exists between a search engine service provider and a security software service provider is whether there exists a competitive relationship between them. At present, the courts will generally find that a competitive relationship exists between internet service providers, of whatever type. For example, in the unfair competition case in which Beijing Baidu Netcom Science and Technology sued Qizhi Software (Beijing), the Beijing Second Intermediate People’s Court said: “Given that both parties in this case are internet service providers that have a very large number and percentage of the internet users in China; that they have the potential to develop and have actually developed into various sectors of the internet service business; that development into the various sectors of the internet service business is relatively easy; and that the attraction of internet users by internet service providers is the fundamental guarantee of their survival and growth, this Court accordingly holds that a competitive relationship exists between the plaintiff and the defendant.”

Consequently, the issue that needs to be addressed next is whether the blocking in advance of suspicious websites by security providers in the search results of a search engine service provider constitutes unfair competition. By placing a special mark next to websites that are suspected of being Trojans or phishing sites, thereby warning users to avoid clicking on them, as described above, security software does not alter actual search results. We believe that this method of protection is a win-win situation for both parties, and does not diminish the search engine service provider in the eyes of the public or damage its reputation. In fact, search engine service providers themselves block malicious websites, but some malicious websites are nonetheless able to infiltrate into search results.

Third party protection beneficial

As, at present, there are no specific legal provisions or industry regulations governing the ranking algorithms used by search engines, each search engine provider sets its own ranking algorithm. Accordingly, we feel that having third party security providers providing protection for search results is, objectively, conducive to search engine providers improving their technologies and sanitizing search results, respecting user’s rights and interests and promoting the healthy, steady and continuing development of the internet.

Wang Yadong is executive partner, and Gao Song is a partner, at Run Ming Law Office