The Web site was ready. The search campaign was set up. All hands were on deck for a successful launch. Little did we know that the one thing that would hold up the launch would be a lawyer. Yes, a lawyer who apparently had never heard of a text ad and required that my colleague walk the legal team through this newfangled thing called Google, the process of conducting a keyword search and the text ads that appear. Sigh.
Why is it that the final frontier of search must always the law? As it so happens, technology and advertising are moving much faster than our legal system, which inevitably means that by the time policy is determined, we will all be on to the next greatest thing. In the interim, here’s a primer on the search engine marketer’s legal woes of 2007.
· Trademarks. If you thought that the trademark question was resolved, guess again. Not only has Utah recently enacted a law that prohibits marketers from buying a competitor’s term, but many a lawsuit is still pending. Fortunately, the International Trademark Association’s 129th annual meeting in Chicago included a session titled “Muddy Waters: Evolving Law and Policy in Internet Advertising (Keywords and Adware) featuring speakers from Google, Yahoo, Microsoft and AOL. (Perhaps this is lawyer humor, but just following the title was this statement: “Muddy Waters” is a registered trademark of the Estate of McKinley Morganfield, a/k/a Muddy Waters. The non-trademark use herein is with the consent of the Estate.)
· Click fraud. Like the trademark question, click fraud is also here to stay. While only 200-odd advertisers are known to have opted out of the Google class action lawsuit, it is only a matter of time until this matter comes once again to a head.
· Privacy. Concern over privacy is the reason why the Electronic Privacy Information Center (EPIC), the Center for Digital Democracy (CDD) and the U.S. Public Interest Research Group (US PIRG) — three online civil rights groups — are asking the FTC to block the Google/DoubleClick deal. Ultimately, the thinking is that the new entity would have access to more information on Internet users than any other company in the world. The only acceptable answer to the groups would be a move by Google to stop tracking its users. (Fat chance.)
· Monopoly. Microsoft is all sour grapes on DoubleClick, a firm that it is also rumored to have wooed. The engine is leading a charge to block the Google/DoubleClick on the position that the resulting entity would have an anti-competitive effect on the marketplace. Interestingly, racketeering charges have come back to haunt Microsoft after a court upheld consumer claims. The lawsuit was filed in California and Nevada by customers of Best Buy who claim that they were unfairly charged for MSN’s Internet service, noting that Microsoft invested $200 million in Best Buy to promote the service.
· Video piracy. On the same day that English Premier League filed a lawsuit against YouTube, NBC Universal joined Viacom in an effort to forbid users from posting copyrighted works on the site. At the heart of the matter is the fact that YouTube enables and benefits from rapid and broad distribution of other firms’ content. In the case of the English Premier League suit, Google is claiming that the Digital Millennium Copyright Act is misunderstood.
· Audio Digital Rights Management (DRM). Apple and Steve Jobs, in particular, went on the record earlier this year saying that the only reason the iTunes platform uses proprietary DRM to prevent music from being illegally copied is at the insistence of the music executives. Critics suggest that iTunes itself is starting to look like a monopoly, being the only true reseller. (Techcrunch reports that the iTunes has twenty times the sales of the No. 2 music retailer.) As for the future, Yahoo Music’s general manager has asked labels to be rid of DRM and Sony has suggested that DRM’s importance will eventually fade. This, of course, will not be without a legal battle.
If there is any silver lining in legal tangles, it is that technology is now being taken seriously and that the courts’ decisions on the above will lay the foundation for our digital future.
