Legally Speaking: Recent Legal News about Search

Feb 26, 2008 • 2:51 pm | comments (1) by twitter | Filed Under Search Marketing Expo 2008 West
 

Jeff Rohrs from Exact Target is moderating. He introduces the new format of being able to ask questions online, during the course of the session, which will be compiled by Rob Kerry and presented to Jeff for the QA section.

Clarke Walton, a self confirmed “lawyer and a spammer” from his firm, the Walton Law Firm. He will talk through some recent trademark usage laws and disputes. He will start with reviewing the current trademark policies. MS AdCenter revised their TM policy in September 2007. They are no longer creating white lists of advertisers that are permitted to use TMs. This was causing fights between advertisers and TM owners, so they axed it. The heart has not changed – cannot bid on keyword, ore use them in advertising copy.

Shows a chart with Trademark policies summarized for Google, Yahoo and MSN. Google: any advertiser can bid on the term as a trigger keyword. Not allowed in ad text. MS will not allow on either, with exception of authorized resellers, information site that does product reviews but does not have affiliate links or links to competitors, and if using the mark in a dictionary sense. Yahoo policy is the functional equivalent of the MS policy. Google is by far the easiest in his mind. Up until 2004, Google did not allow bids on the keywords, when they decided to change it up.

The Utah TM Protection Act. “came out of left field.” Instated by Utah in March 2007. The big idea was they were to create a TM registry, where TM owners could register them in an electronic registry. Stupid idea because it has a lot of constitutional problems (Dormant Commerce Clause – look it up). In April 2007, ISPs (Google, Yahoo, et al) had a closed door meeting with Utah legislators, and the law got revised in September 2007. The law may not be approved until 2008.

Three recent cases – Langdon v. Google Inc. 2007 WL 530156. Langdon is a “griper” who does not like the NC government or the Chinese government either. The ads he wanted to run were attacking the governments. He was upset, and sued “pro se” (without a lawyer). Easy decision: SEs are not compelled to run ads if they don’t want to.

Next case: J.G. Wentworth SSC Ltd v. Settlement Funding LLC. The defendant has been buying the keyword of the competitor (Wentworth) but not using it in text of ad. Are the trigger words up to the level of “use in commerce.” The decision is that buying the trigger as a keyword is not confusing the consumers if the search results do not display the TM in the text. He feels that this policy will eventually become uniform.

Last case: American Airlines v. Google. August 2007 – 55 page complaint about Google selling the TMs as both trigger keywords as well as advertisers using the TM in the ad text. They feel the TM policy is way too burdensome on the TM owners, since it is very difficult to track all those that are using the text in the ads. Google filed motion to dismiss in October 2007. Judge denied and issued only a one page order, instead of detail. So not sure what way this is heading, but do know that in November 2007, Google finally answered AA’s complaint. The interesting thing about this is that AA is a very deep pocketed plaintiff, and has the money to “go the distance.” Clarke feels they may have a good chance here in proving that it is too difficult to police.

The US Copyright office is now accepting electronic filings and they are looking for beta testers. Providing copywriters with an incentive discount ($10 off) to use this new online system. See: copyright.gov.eco/beta-announce.html.

Note Jeff Rohrs asks a question of the panel here but I will use this time to catch up and edit the above. Next time, come to SMX and you can hear it all!

Sarah Bird from SEOMoz is up next and will cover in depth “Communications Decency Act Section 230 Immunity.” “Are you confused about who can be held liable for online speech?” Looking at Blogs, Forums, Match.com, Craigslist – anything where you are publishing your content and someone else’s.

She talks about publishers’ liability “in the olden times.” It used to be that print media could be held responsible if they printed something that was considered offensive. Distributors of the media could not be held responsible…they do not publish it and aggregate, they just make it available. Then the Internet came along, and “Stratton-Oakmont v. Prodigy. They said that Prodigy was liable for statements made by someone about the plaintiff on an online bulletin board. If they had not tried to edit anything on the board, they would not be found liable. So if you want to edit the blog/forum, you are open to liability, but if you do not edit them, you are not liable. Interesting. This decision created a disincentive for publishers to limit objectionable content.

In response, Congress passed the Communications Decency Act in 1996. Quotes: It is the policy of the United States: (1) To promote the continued dev of the internet and other interactive computer services and other interactive media, and (2) to preserve the vibrant and competitive free market that presently exists on the internet, unfettered by Federal or Sate regulation. In short, “we are all benefiting from this.” She admits she has a personal interest in this due to her role at SEOMoz.

What is the solution to the problem? The CDA created immunity from suit providers and users of “interactive computer services” (ICS) for 3rd party content. “Information Content Providers” (ICP) are still liable for the content. The act is written very broadly, which is good and bad. Good because it can be finessed as the Internet continues to develop. Bad because it does not call out a “Craigslist” type site as being responsible in all cases. The exception: The CDA 230 C1 explicitly exempts from its coverage criminal law, communications, privacy law and intellectual property claims.

She wants to re-emphasize you can still sue the information content provider, if you can catch him…this can be difficult if someone covered its tracks. “Most regular folks” don’t have deep enough pockets to investigate and find someone if they are trying to remain anonymous. No provider or user of an ICS shall be treated as the publisher of content created by a community user…but print newspaper can still be held liable.

2007 news Flash – Fair Housing Council of San Fran Valley v. Roommates.com (CV-03-09386-PA) May 2007. This target the choices people have when they seek a roommate that can be related to religion and race. This case is unusual because it involves civil rights instead of slander defamation. Roommates.com performed the function using drop down menus. The FHC was upset because of the discriminatory slant. This also holds true in “regular” advertising for properties and homes, which are strictly regulated to avoid the appearance of discrimination. Should the site be held liable for violating the Fair Housing Act? Questions and considerations this should spur in your mind: what does internal conscience tell you? A print newspaper publishing similar ads could be sued. The site was creating a functional database by limiting users’ options, which is something we want to encourage. Who really is the author?

This is why the CDA will always be flawed…is the author the person who filled out the profile or roommates.com for providing the choices in the drop down? The biggest tension is the difference between the ICS and the ICP. One you’re liable and the other not. The divided opinion of the court: majority decided to hold roomamates.com liable and treat it as a publisher since they had enough control over the content and was organizing the content in such a way that they no longer get immunity…this is a huge move away from the previous case history. She is rushing through the last slides because she is well over on time…

In October 32007, the court decides maybe they got it wrong! They decided for a “do-over.” They have temporarily recalled the decision and the old decision is not legally valid. So this is still in limbo. Things that are certain: if you passively host 3rd party content, you are immune from suit. If you pre screen objectionable content, you are immune, if you exercise traditional editorial functions you are immune. Also goes over some uncertainties that I missed.

Last speaker is Eric Goldman. Both the other speakers pause to say that he is the “definitive” blogger in this space, and that they did research at his blog prior to this presentation…Eric tells them to keep speaking (laughs). He is a Professor at Santa Clara University School of Law, and his blog is Ericgoldman.org. He talks about the credits that Yahoo and Google had to give in the recent settlements with click fraud. He feels the lawyers got the most cash and the advertisers did not do as well. In the case of the Google settlement, there were about 550 advertisers that chose not to participate and became potential individual plaintiffs. So far this is still ongoing.

Other related topics to click fraud: Miva.com got sued because the statements that they made in their filing under-portrayed the click fraud risk to investors. He feels this and some others are also in the “chicken scratch category.” Open issue v#1: “Just how bad is click fraud?” (Note Eric is not using a slide deck so I am not going to catch everything here). Also we know that advertisers are not able to make a good assessment of what they are losing to CF. He feels personally that it doesn’t appear that CF has been a significant drag on the marketplace. He is sure we could find examples of people that are cutting back due to this, but this brings out the question if everyone has really moved on from this topic?

The second open issue is whether there will be a new class action suit? He feels it is likely, since the lawyers made good money on this last time (laughs). He feels the Utah Act presented by Clarke will die. However, we should point out that there are still 2 anti-keyword advertising on the books, in Utah and Alaska, which specifically deals with advertisers using adware. So if you are advertising via adware the laws exist which restrict the display of pop-ups in those states.

Eric will now provide some of his opinions on current cases. He feels that the main battle ground is the search engine policies. He feels that we can move forward on this directly through the se policies – contact Google directly and have them change the verbiage. The other 2 battlegrounds are the courts and legislators. The legislators will wake up one day and freak out and decide they have the power of the pen to enact laws to control the Internet (laughs). We are still trying to work through in the judicial systems what the appropriate rules should be – the courts are so split that there is no short description of the current state of this area of law.

He also feels that AA v. Google is a clash of the titans and something will have to give. The other case he is closely watching is a case called Rescuecom. Judge denied a claim on a controversial ruling which is now in appeal (findarticles.com/p/articles/mi_qa3718/is_200409/ai_n9451533). He lastly wants to call attention to another section of the law that Sarah spoke of, this time 230 C2 instead of C1. Kinderstart case is related to this…

Jeff goes to QA and I will now finish trying to get rid of typos. Best quote from the QA by Clarke: “this points out that there are a bunch of blow-hard law professors that do not know what they are talking about.” Great tension on the stage between Clarke and Eric, who challenged openly Clarke’s opinions. I have to personally point out that this was a very interesting and fun session to attend – great job everyone!

Note this is live coverage of SMX West 2008, and there may exist grammatical or typographical errors in this post. Please share your thoughts in the comments!

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Comments:

clarke walton

03/04/2008 11:59 am

Hey Chris, good to see you at SMX and thanks for covering the session. Glad you enjoyed it!

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