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Digital Confusion: Search Engine Legislation
Derek Wilson
Academic affiliation: Oklahoma State University
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The advent of the internet has caused business to adapt to many distinctly 21st century niches. This adaptation is not coming easy because their online practices are being met with legal challenges. These legal dilemmas have brought forth many inveterate precedents that must be reevaluated for this technological makeover. A hotspot of controversy is focusing around the seemingly simple field of search engines. There may be malicious coding lurking under a websites surface of trendy jpeg and bitmap graphics. In the ever-increasing desire of corporations to achieve marketing dominance search engines have become infested with erroneous search results. Through the use of marketing tactics, such as keyed banner ads, search engine companies are helping to blockade the free flow of information.

The lack of laws governing the operation of search engines has left them vulnerable to legal prosecution. Moreover, this situation has led to a myriad of lawsuits over trademark infringement and intellectual property rights. Lawyer F. Greg Lastowka has highlighted the current state of these legal ramifications in his article "Search Engines Under Siege." Lastowka's article argues that problems with search engines are due to a couple of primary factors. The first factor, the most blatant breaking of the law is trademark infringement through the use of metatags and other deceptive coding practices. The second factor is the form of advertisement that search engines are allowing companies to use. The combination of these two problems has created a complex situation where the interpretation of trademark law is becoming increasingly important.

The introduction of trademarks and the power to protect a specific word or phrase is a relatively new occurrence. Trademarks were created to liberate consumers from crafty miscreants and to uphold companies' rights to protect their unique creations or services. The implementation of this protective legislation is still being met with resistance. As information and competition has expanded exponentially through globalization, trademark laws and doctrines are vague when applied to the modern economy. These laws are failing to provide "[…] a legal balance that protects the rights of trade holders [and] ensures the public's access to […] diverse information" (Lastowka 150). The turbulence caused by this lack of balance can easily be seen in the unfair advertisement practices on the internet that is blocking the flow of information. The consumers standpoint on this predicament has been less than favorable for advocates of paid placement litigation because many "[p]eople are still kind of so pleased that they can go there, ask for something and get an answer that it's kind of not on their radar screen to look in a very scrutinizing way to see what's in the background there" (qtd. Survey). As the internet matures, the need for more accurate and unbiased results will make search engine users demand change. The legal system must remedy these antiquated laws in order to conduct the internet on a smooth path for the future.

Traditionally, many website revenues are a product of advertising, which is received through the use of banner style advertisements. In order to raise income many search engines have utilized a new strategy of letting companies buy their way to the top of the search results for a given keyword, through the use of keyed banners. Keyed banners allow a company to place a banner ad that specifically deals with the topic a user searches for on a search results page. These banner ads can often be misleading to inexperienced internet users who may confuse this advertisement from their search results. Keyed banners have had success against prosecution in courts since they determined "[…] advertisements were not […] results." (Lastowka 147). The courts failure to recognize the amount of confusion caused by the keyed banners may be underestimated and allow search engine companies to circumvent the legal system.

A recent survey conducted by the Pew Internet and American Life Project is reporting startling data on how internet users are interpreting the difference between their search results and placed advertisements. In this survey of a random sample of the population, Pew tried to determine how often a user could detect a paid link versus a normal non-paid link in search results, when using 15 of the most popular search engines. Surprisingly, "[…] only 18 percent of all Web searchers [know] when a link is paid" (Survey). This statement will be a valuable addition to current litigation against paid placement. The study suggests that the use of paid placement advertisement could very easily conflict with the doctrine of initial interest confusion, a key component of trademark law. The doctrine of initial interest confusion is a rather new addition to trademark law, which "[…] recognizes a trademark holders right to prevent confusion that diverts consumer interest based on the holders mark, even if such confusion is no longer present when the sale is consummated" (Lastowka 145) . Attorneys may persuasively argue that since almost 82% of users can't tell the difference between the advertisements, companies using paid placement for search queries relating to a competitors trademark, may be misleading or confusing the consumer. The study was concluded by offering suggestion to the search engines companies, stating they "could do better in disclosing sponsorships, particularly when they practice "paid inclusion"" (Survey). If search engines are to avoid further prosecution, it would be wise to actively pursue the suggestions produced by these results to shield themselves from legal battles.

Legislation has been slow to act on some areas of paid advertisement where there are vast areas of legal and technical complexity. A prime example of such an area can be seen in keyed banner ads. Playboy challenged this advertisement practice when they sued Netscape for trademark and dilution for the use of their keyed banners when a user searched for the "playboy" name (Lastowka 147). This lawsuit was very promising to finally win a victory against the undefeated search engines in legislation, since Playboy felt that this was clearly a violation of their intellectual property rights. In the end, the court rendered the decision that a common phrase such as this can not be used for suit, unless the phrase is specifically used by a company in direct competition in order to lure away customers. The courts inability to recognize the blatant infringement upon Playboy, in order to protect the use of the word as a "common phrase," is not just when the company is responsible for the word becoming popular. The search engine companies' relentless pursuit of profits will ensure that many cases similar to Playboy v. Netscape will continue to appear in courts around the country.

The courts are now dealing with complex lawsuits and are making strides in taming the digital domain. In current cases the court has found that the use of metatags that include a trademark word that are used to mislead consumers are illegal. The judges stated that "[…] metatags resulted in the diversion of customers […]" which is a violation of common legal doctrine (Lastowka 144). While not a ground breaking decision, actions taken by the court are helping to shape up the Wild West image of the internet.

In most businesses, it is the primary objective to make the most profit as possible. Search engines are simply following those plans which are encouraged by a capitalistic society. Ultimately, it is not up to the search engines to regulate themselves and make legal and moral decisions. It is up to the government and the courts to lay a foundation so that search engines may become either unbiased fact finders or, at least, known purveyors of hidden advertisements. The enforcement of such search engine laws would greatly help the internet by creating a firmer foundation for the internet to stand on, thereby letting information flow more freely.

Works Cited

Lastowka, F. Gregory. "Search Engines Under Siege?" Speculation. Eds. Jason Landrum, Matthew Wynn Sivils, and Constance Squires. Iowa : Kendall/ Hunt, 2003. 141-150.

"Survey: Users Confuse Search Results, Ads" ABC News. 30 Jan. 2005 <http:// abcnews.go.com/Business/wireStory?id=437251>.

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