[governance] 'search neutrality' to go with net neutrality

[Deirdre Williams]

The thing that concerns me most about this debate is the perception,
apparently generally accepted, that the user is a) unable to protect him/her
self and b) stupid.
I remember being greeted with surprise and horror when I suggested "playing
games with google" - deliberately inserting words into emails to see what
the response would be.
We can all say no, and if we are "disempowered" to the point where this is
no longer possible then the answer surely lies in educating people, rather
than regulating google.
Deirdre

2010/1/5 Jean-Louis FULLSACK <jlfullsack at orange.fr>

>
>
> Dear Ian and all
>
> The article below (from IBLS News Portal) may be interesting for some of
> you
>
> Best
> Jean-Louis Fullsack
>
>
> > Message du 05/01/10 01:01
> > De : "Ian Peter"
> > A : governance at lists.cpsr.org
> > Copie à :
> > Objet : Re: [governance] 'search neutrality' to go with net neutrality
>
> >
> >
> >
> > One thing to realise in this debate is that there is an inherent
> potential
> > conflict of interest involved when a search provider is also an
> advertising
> > and content provider. Particularly as internet names become more
> irrelevant
> > and search continues to expand as the major discovery mechanism.
> >
> > And when the worlds biggest search provider is also the biggest content
> > owner and biggest advertising revenue source on line, there is a recipe
> for
> > problems and potential monopolistic behaviour.
> >
> > And here's another bit for the puzzle! I have just been the victim of an
> > internet fraud - I realised in time (I hope!) that I was the subject of a
> > scam, but to escape it I had to cancel a credit card.
> >
> > Where Google comes in here is that the search result that led me to the
> > fraudulent site was a number one hit on Google (I was looking for a
> > particular piece of Mac software and was drawn to a file sharing site
> that
> > wanted a small fee - but as I found out later has the habit of using
> credit
> > card numbers obtained from many similar sites for all sorts of other
> > charges). Quite sophisticated sites.
> >
> > I cant blame a search algorithm for directing me to a site which happens
> to
> > be fraudulent. But I am not going to argue for entirely neutral
> algorithms
> > either - in time and as we become more mature as regards cybercrime,
> search
> > algorithms should be rejecting fraudulent sites where possible (yes this
> is
> > difficult I know).
> >
> > So we probably don't want neutral search entirely. The Halal search
> engine
> > discussion here a few months ago raised similar issues. But what I do
> want
> > is clear disclosure and some clear overall policies regarding search
> > behaviour.
> >
> > This is a critical issue, and especially for governance. It isnt going
> away
> > and there is no logical home for addressing these issues holistically at
> > present.
> >
> > Ian Peter
>
> *INTERNET LAW - The Initial Interest Confusion Theory: The Beginning Of
> Liability For Search Engine Companies *
>
> *Martha L. Arias, Martha L. Arias*
>
>
> <?subject=INTERNET%20LAW%20-%20The%20Initial%20Interest%20Confusion%20Theory:%20The%20Beginning%20Of%20%20Liability%20For%20Search%20Engine%20Companies%3cp%3e%3cp%3e&Body=http://www.ibls.com/internet_law_news_portal_view.aspx?s=articles%26id%3dE53B27F8-82F9-4A02-B57B-1B47B7ADBC2A>
>
> Search engine and internet advertisers have found technological systems to
> provide ‘better location’ and visibility for their patrons’ advertisements
> (ads). One of these inventions is Meta tags. In simple terms, Meta tags are
> HTML (Hypertext Markup Language) codes incorporated to an advertisement or
> webpage that depict that website content and will increase visibility for
> those searching the web. There are two types of Meta tags, ‘description’ and
> ‘keyword’ Meta tags. The main objective in using description Meta tags is to
> describe the website content. At least at its inception, keyword Meta tags
> intended to use common words or sentences found in a specific website to
> trigger visibility of the Ads. No doubt Meta tags are an excellent tool for
> search engine patrons and for Internet surfers. It is an excellent marketing
> strategy for search engine patrons and time-efficiency instrument for
> Internet users.
>
> Yet, search engine companies turned intense in helping their patrons. They
> embarked on the sensitive journey of using trademarked terms in Meta tags.
> But, is this use legal? May search engines be liable for the use of
> trademarked terms in keyword Meta tags? May this violate the trademark laws
> and unfair competition rules? The answer to these and other related
> questions follow.
>
> One of the leading United States (U.S.) cases on the issue of liability for
> the use of trademarked terms is Brookfield Communications, Inc. v. West
> Coast Entertainment (Brookfield). This case commenced in a District Court of
> California in 1998 and concluded with a remarkable decision that marked the
> beginning of a new liability era for those using trademarked words in their
> advertisements. Brookfield held that the defendant company was liable to the
> plaintiff company, under the Trademark Infringement and Unfair Competition
> Laws of the U.S. Lanham Act (15 U.S. §§1114 and 1125(a), for the defendant’s
> use of plaintiff’s trademarked term in defendant’s Meta tags in Defendant’s
> websites, even if no actual damage existed. This case introduced the Initial
> Interest Confusion liability theory that is still applicable in the U.S.
> Courts.
>
> Brookfield was later complemented by Playboy Enterprises, Inc. v. Netscape
> Communications (Playboy). In Playboy liability was directed asserted on a
> search engine company sued for infringement of the same provisions of the
> U.S. Lanham Act.
>
> *What are the facts of Brookfield case?*
>
> Brookfield Communications, Inc. is a company that collects and distributes
> information about the entertainment industry. In its initial stages,
> Brookfield created and offered software for major Hollywood film studios
> only. Later in 1993, they broadened their services and introduced a software
> database with news and information about the entertainment industry intended
> for a general or less specialized audience. This database was called
> “MovieBuff.”
>
> West Coast Entertainment is a large video rental store with more than 500
> stores nation- wide. In 1991, West Coast Entertainment got a Federal
> registration of the service mark “Movie Buff’s Movie Store.” Records show
> that this service mark was related to the sell and rental of video cassettes
> and video game cartridges. In February 1996, West Coast Entertainment
> registered a domain name called “moviebuff.com.”
>
> In August 1996, Brookfield tried to register a domain name called
> MovieBuff.com to no avail because this domain name had been registered by
> West Coast Entertainment Company.
>
> In August 1997, Brookfield applied for the Federal registration of the mark
> “movieBuff” that would identify Brookfield’s products and services.
> Brookfield trademark application described its products as “computer
> software providing data and information in the field of the motion picture
> and television industries.” This Federal trademark was issued in September
> 1998. Likewise, Brookfield had obtained a California state trademark
> registration of the mark “movieBuff” in 1994 that covered “computer
> software.”
>
> In October 1998, Brookfield knew that West Coast Entertainment Company
> would launch an entertainment industry database in their already registered
> website, “movieBuff.com” with similar information to that offered by
> Brookfield’s through its “MovieBuff” software and displayed in their website
> “Brookfieldcomm.com and “moviebuffonline.com.”
>
> Brookfield then requested West Coast Entertainment Company to desist this
> endeavor because it would violate Brookfield’s trademark rights. West Coast
> Entertainment Company paid no attention to this request and launched its
> entertainment database in its “movieBuff.com website. Then, this lawsuit
> commenced.
>
> *What was the legal issue in this case?*
>
> There were several legal issues in this case, some of them procedural
> issues that will not be addressed in this summary.
>
> First, the Court considered whether there was an infringement of trademark
> claim under section 32 of the Lanham Act (U.S. Trademark law); Second,
> whether there was an unfair competition claim under section 43 of the same
> Act. These two issues were solved after worthy and lengthy intellectual
> property considerations that will be reviewed in other summary, especially
> that related to the use of trademarked terms in domain names.
>
> Third, and most important for us in this discussion, the Court considered
> whether West Coast Entertainment Company (defendant) was liable for the use
> of the trademarked term “movieBuff” in the Meta tags in its website “
> westcoastvideo.com” or any other website different than “movieBuff.com.”
> The Court decision was in the affirmative. The Court held that due to the
> Initial Interest Confusion theory, West Coast Entertainment Company was
> liable to Brookfield for the use of its trademarked term in the Meta tags of
> defendant’s websites other than “movieBueff.com.”
>
> *What is the Initial Interest Confusion Theory and is it Actionable under
> the U.S. Lanham Act?*
>
> Using the facts of this case, the Court appropriately defined this theory
> as follows:
>
> “Web surfers looking for ‘Brookfield’s’ ‘MovieBuff’ products who are taken
> by a search engine to ‘westcoastvideo.com’ will find a database similar
> enough to ‘MovieBuff’ such that a sizeable number of consumers who were
> originally looking for Brookfield’s products will simply decide to utilize
> West Coast’s offering instead. Although there is no source confusion in the
> sense that consumers know they are patronizing West Coast rather than
> Brookfield, there is nevertheless initial interest confusion in the sense
> that, by using ‘moviebuff.com’ or ‘moviebuff’ to divert people looking for
> ‘MovieBuff’ to its web site, West Coast improperly benefits from the
> goodwill that Brookfield developed in its mark.”
>
> The wisdom of this theory may be simply explained as follows; a consumer
> looking for a specific product uses a search engine and types the name of
> that product. Suddenly, that consumer is taken to the website of a company
> that may not be the owner of this product’s trademarked term but that sells
> similar products. Even though, this consumer may be clearly aware that he is
> using a different website than the initial website he intended, he may
> decide to stay in this website since it offers a similar product of the one
> he was looking for. It is clear that the website using a trademarked in its
> Meta tag is benefiting from the goodwill of this trademarked term to attract
> consumers to its site.
>
> But, where is the confusion and violation of the Lanham Act? The Court
> stressed that a consumer re-directed to a website different than the one
> initially intended may not be confused as to what website he is visiting.
> Yet, the fact that his initial interest for a company or website was
> diverted to another is a type of confusion against which the Lanham Act
> protects. This Court citing to Mobile Oil Corp. v. Pegasus Petroleum Corp.
> said: “to capture initial consumer attention, even though no actual sale is
> finally completed as a result of the confusion, may be still an
> infringement.” Thus, one of the principal elements of infringement under the
> Lanham Act, be it confusion, is found when a company uses a trademarked term
> in its Meta tags.
>
>
>
> ____________________________________________________________
> You received this message as a subscriber on the list:
>     governance at lists.cpsr.org
> To be removed from the list, send any message to:
>     governance-unsubscribe at lists.cpsr.org
>
> For all list information and functions, see:
>     http://lists.cpsr.org/lists/info/governance
>
>


-- 
“The fundamental cure for poverty is not money but knowledge" Sir William
Arthur Lewis, Nobel Prize Economics, 1979
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.igcaucus.org/pipermail/governance/attachments/20100105/c8c2f079/attachment.htm>
-------------- next part --------------
____________________________________________________________
You received this message as a subscriber on the list:
     governance at lists.cpsr.org
To be removed from the list, send any message to:
     governance-unsubscribe at lists.cpsr.org

For all list information and functions, see:
     http://lists.cpsr.org/lists/info/governance