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49 J. Copyright Soc'y U.S.A. 165 (2001-2002)
Let the Crawlers Crawl: On Virtual Gatekeepers and the Right to Exclude Indexing

handle is hein.journals/jocoso49 and id is 193 raw text is: LET THE CRAWLERS CRAWL: ON VIRTUAL GATEKEEPERS AND THE RIGHT TO EXCLUDE INDEXING Niva Elkin-Koren' I. INTRODUCTION The high hopes associated with the Internet for enhancing freedom of speech and personal autonomy were tied to its decentralized nature. Technically, anyone connected to the net could post their content and make it available through various channels to a massive number of people. For speakers the net was a powerful platform for efficiently expressing their views or distributing content to the public at large. Yet, the proliferation of information introduced a new challenge of how to capture users' attention. While posting on the web may be inexpensive and easy, making your content noticeable and detectable by users becomes extremely competitive. Since it is no longer feasible to restrict the available content on the web, information providers increasingly seek to directly control users' attention. The proliferation of information in cyberspace challenges not only speakers but also users. While in the past individuals suffered from lack of information that was necessary to perform their transactions or exercise their political rights, cyberspace creates an information overflow. Consequently, users are increasingly dependent on technical means that allow retrieval and selection of relevant information from the large bulks of available data. Search engines were developed to serve this function.' Search engines are becoming the new virtual gatekeepers of cyberspace. Information that is undetectable, or otherwise remains unlisted on the Senior Lecturer, University of Haifa School of Law. J.S.D. Stanford Law School, 1995; LL.M. Harvard Law School, 1991; LL.B. Tel-Aviv University, 1989. I thank Michael Birnhack, Michael A. Einhorn, Peter Hirtle, Helen Nissenbaum, Eli Salzberger, Haim Ravia, and Alfred C. Yen for their valuable comments. I also wish to thank the participants of the faculty colloquium at IDC and the participants of the Interdisciplinary Conference on the Impact of Technological Change on Intellectual Property at Ohio State University in which portions of this paper were presented. I am grateful to Matan Goldblat and Yael Bregman for their research assistance. The first search engine, Archie, was developed by Alan Emtage, a student at McGill University in 1990, before the World Wide Web was created. See WES SONNENREICH & TIM MACINTA, WEB DEVELOPER.COM GUIDE TO SEARCH ENGINES 1-2 (1998) [hereinafter WEB DEVELOPER.COM]. EDITORS NOTE: This article originally appeared in Volume 26 of the University of Dayton Law Review, pp. 179-209. Let the Crawlers Crawl 165