"Clickstream owned by user. Opt out by turning off toolbar."
It is not clear to me that the user completely owns the clickstream. If Google's terms of use say you cannot share their search results with anyone else, are you legally allowed to send the clickstream to Microsoft?
I guess if it really comes down to it Google can encrypt the query in the URL. If Microsoft circumvents this (like by intercepting the JavaScript that encrypts it, or pulling the query out of the HTML input element), then it will demonstrate that they're really intentionally copying Google's results and this "clickstream" business was just a convenient cover.
IF Google say you cannot share their data with anyone else, then you are not legally allowed to share the answer with your Dad.
IF Google say you must send a 'thank you' email to them after each query, you are legally obliged to do that.
IF Google say you cannot share their data in an automatic, 'clickstream' fashion, then you cannot legally use Microsoft's toolbar. And if you break that agreement, Microsoft cannot legally use the clickstream data you send it.
I think Google would require a clickthrough TOS to enforce this. AFAIK Google has no TOS listed on its page, but they do have a copyright notice. And a link would not be sufficient.
But yes, if they did a clickthrough TOS then they could enforce that. Of course the day Google adds a clickthrough TOS there will be some serious scrutinizing.
Doesn't the browser own the click even before the Web page gets it?
If Google's terms of use want to claim that a browser can't record clicks on their web pages, then perhaps browser terms of use will say they can do whatever they want with any data returned to them by the server.
Clickstream owned by user. Opt out by turning off toolbar.
Both should be respected.