May 6, 2009

Judge Dismisses Anti-Spam Lawsuit Against ValueClick

A California judge has dismissed a $45 million lawsuit against online advertising network, ValueClick. The suit was brought forth by an internet service provider in a state with one of the greatest potential for damages.

The ISP, Hypertouch, claimed that ValueClick sent out 45,000 email messages containing false advertising. The judge threw out the case because he said the federal CAN-SPAM Act took precedent over a state law barring false commercial emails. The judge also said that Hypertouch failed to demonstrate fraudulent action on behalf of ValueClick and its co-defendant PrimaryAds.

This isn't the first time ValueClick has run into spam allegations. Last year, they settled with the FTC for $2.9 million in alleged CAN-SPAM and FTC violations.

Expect Hypertouch to appeal.

January 30, 2009

SEW Experts: Battling Click Fraud is Important for All Involved

Every pay-per-click advertiser sees the presence of click fraud, as does every search engine. We're just disagreeing about the numbers. In today's SEM Crossfire column, "Battling Click Fraud is Important for All Involved," Frank Watson and Chris Boggs remind us that both sides need to acknowledge that a certain level of click fraud exists, and work together to diminish its impact.

» Full story

Posted by Kevin Newcomb at 12:00 AM | Permalink | Comments (0)

October 31, 2008

SEW Experts: Porn and Gambling: Canaries in the SEM Coal Mine?

Many advances in marketing on the Web are the result of spending by the profitable and competitive porn and gambling industries. In today's SEM Crossfire column, "Porn and Gambling: Canaries in the SEM Coal Mine?," Frank Watson and Chris Boggs explore recent lawsuits in both industries that might help us again, by pointing out some specific areas for marketers to keep an eye on.

» Full story

Posted by Kevin Newcomb at 12:00 AM | Permalink | Comments (0)

April 28, 2008

Court Orders Negative Keywords Used To Block Trademark Terms

Eric Goldman reported a Florida court made a default judgment that requires including negative keywords in search advertising to ensure broad match does not include their trademarked term. Obviously this only applies to the specific instance but there is a dangerous precedent being allowed.

Goldman sees the suit applying to just expanded match in broad match - but it is restricting the use of a trademarked term as just a keyword and not in the ad as Google currently allow and requires the use of negative keywords to ensure they get blocked - or at least then passing the culpability to Google.

With the isolation of responsibility to Google by following these rules - if that is the case - I wonder if Orion Bank will be going after them next... this one I don't see them having a no show for a defendant.

The requested ruling that won by default (no one showed to contend it) included: a) from any and all use of the term ORION, ORION RESIDENTIAL FINANCE, or any other confusingly similar term; b) from using any sign, advertisement, slogans, internet domain name, promotional material, promotional communication, and/or printed or electronic matter containing the term ORION, or any other confusingly similar term.

That would stop them from using orion as a term, the domain they own (but they could be a registered company with the name Orion Residential Financein Florida as the suit lists) OrionResidentialFinance.com, and much more.

Beyond the one to one defendant - the suit did allow for it to apply to any other company by including:

ORION RESIDENTIAL FINANCE, LLC, a Florida limited liability co., and VARIOUS JOHN DOES, JANE DOES and ABC COMPANIES,

Does ABC Companies mean any future people trying to use Orion?

This has to get taken back to the courts soon.

Posted by Frank Watson at 7:11 PM | Permalink

April 22, 2008

Google Sued for Ad Fraud; Another Class Action Settlement?

Today Google was slapped with a an advertising fraud lawsuit that will be fascinating – and important – for AdWords advertisers to watch.

The lawsuit, which seeks class action status, was filed by the firm of Kabateck Brown Kellner, on behalf of David Almeida, a Massachusetts-based private investigator. The lawsuit claims that Google defrauds advertisers by obscuring the fact that new AdWords campaigns are set by default to display ads on both Google's search results pages (and like pages served by partners like AOL) and pages owned by site publishers who display AdWords ads via Google's Adsense programs.

Readers of my weekly SEW Content Advertising column are familiar with this phenomenon, and my suggested best practice of creating separate search and content campaigns.

At the risk of making life harder for my friends at Google, I need to point out that the suit seems to get one important fact wrong. Reports today in CNET, Yahoo! Finance, Wired and other outlets imply that advertisers are presented with the ability to “opt out” of displaying ads on the content network during campaign creation. Here's the way Yahoo puts it:

“During this process, users encounter two adjacent boxes. Into the first, customers enter the amount they wish to pay per "click" of an ad displayed on Google.com. The second box is marked "optional." Into this box, a user can enter the amount they would be willing to pay per "click" of an ad appearing on a third party web page. But leaving the box blank does not prevent ads from appearing on third-party sites.”

The truth is, advertisers don't see this option during campaign creation. The only way for them to opt out of displaying ads on the content network is for advertisers to explicitly edit the settings of their campaign after creating it, and un-check the box labeled “Content Network” – which is checked by default. Some would reason this makes Google even more exposed to fraud charges.

Another irony: some of the reporting claims the content network is inherently flawed in some way. Here's how Yahoo! puts it:

“Ads on third-party sites are widely-acknowledged to be far less effective (and therefore less valuable to the advertiser) than ads on Google.com.”

Readers of my column know that the content network is not “less effective;” savvy advertisers realize that great, profitable results can be obtained by advertising on content sites. The rules and best practices for creating effective content campaigns are, however, much different than for search campaigns. To Google's credit, they've been trying to make these differences more clear.

I'll dig into this subject more deeply in the next installment of my column. Meanwhile, my predictions, no matter which way the lawsuit is decided:

1. Google will finally make opting out of the content network much more straightforward, with clear instructions during campaign creation.

2. Google's advertiser education efforts, via their tutorials and help files, will much more explicitly teach the differences search and content ad campaign best practices.

Posted by David Szetela at 7:53 PM | Permalink

May 11, 2007

Search-Related Legal Updates

Santa Clara University law professor Eric Goldman, on his Technology and Marketing Law blog, has updates on several search-related laws or lawsuits this week.

Broad Matching Doesn't Violate Injunction – In the Rhino Sports v. Sport Court case in Arizona, the courts have gotten broad matching right for once, Goldman says. Rhino Sports agreed in 2002 to a permanent injunction from using "sport court" in commerce, and last year, Sport Court saw that Rhino Sports' ad was showing up in a search for "sport court." The judge correctly pointed out that Rhino Sports was using Google's Broad Match, and was not targeting the term "sport court," and so was not in contempt of the order.
Utah Trademark Protection Act Updates – It seems Utah's legislators will hold off on implementing the state's Keyword Protection Act "for at least a couple of months." That's probably the best plan, since the law is both unenforceable and would not achieve the desired results.
Another NY Court Says Keyword Triggering Isn't TM Use in Commerce – In the Site Pro-1 v. Better Metal case, a court has determined that keyword triggering and metatag usage isn't a trademark use in commerce, so it's ok for companies to bid on others' trademarked terms. The legal debate's not over, since other courts have ruled the other way, but this is one more vote on the side of sanity.
Social Networking Sites and the Law – In preparation for an undergrad event looking at laws that pertain to social networking, Goldman has put together a brief summary of the legal issues involved. Two of the biggest issues are people creating fake profiles of others, and sexual predators on social networking sites.

Posted by Kevin Newcomb at 12:09 PM | Permalink

January 9, 2007

You May Target With Trademarks

According to a recent U.S. District Court ruling, you may use trademarks when buying search ads. Just don't use the names in actual ads that consumers will see.

The Court also ruled on something that's completely passÃ©: it's okay to insert trademarks in your meta tags which are also invisible to consumers.

The comments in TechDirt are interesting, about the value of trademarks. At what point is do brands become generic terms? Can they get diluted? Don't stores sell multiple brands together, so why's this different?

J.G. Wentworth vs. Settlement Funding was decided in the U.S. District Court of Eastern Pennsylvania. Plaintiff Wentworth says that Settlement used its trademarks "to confuse the consumers and to divert potential customers away."

However, there was no violation found of the Latham Act, which covers trademark protection. See additional interpretation by Eric Goldman. Everyone's applauding in our industry, but this is only another case (and chapter) written on the matter.

Posted by at 11:03 AM | Permalink

October 30, 2006

Buying Keywords As Trademark Use?

The London Free Press is reporting on a case in a New York Federal District Court, Rescuecom v. Google, in which the Judge granted a motion to dismiss on Google's behalf. The case involved the use of trademarked terms as keywords, finding that keyword advertising isn't a use in commerce. But, don't go looking to this ruling for any insights when it comes to the use of trademarked keywords in adwords. There are at least three reasons not to...

First, as the London paper notes, this case was between the holder of the trademark and the search engine, and not the advertiser. It's possible that the advertiser using the trademark in advertisements might not see the same result as Google.

Second, this ruling added to a number of other cases making the landscape around the use of trademarks as keywords a murky area. Eric Goldman reported on the case, and quoted part of the Court's ruling in his post:

"Defendant's internal use of plaintiff's trademark trigger sponsored links is not a use of a trademark...because there is no allegation that defendant places plaintiff's trademarks on any goods, containers, displays, or advertisements, or that its internal use is visible to the public."

Does this apply just to the search engine? We can't be certain what meaning this might have for an advertiser.

Third, a New Jersey Federal District Court, after the Rescue.com decision, held against an advertiser in denying a motion for summary judgment. Eric Goldman also wrote about this case. A snippet from the Court's decision:

First, the alleged purchase of the keyword was a commercial transaction that occurred “in commerce,” trading on the value of Plaintiff's mark. Second, Defendants' alleged use was both “in commerce” and “in connection with any goods or services” in that Plaintiff's mark was allegedly used to trigger commercial advertising which included a link to Defendants' furniture retailing website.

It appears that the New York Federal Court doesn't consider the sales of adwords including a trademark as a use in commerce, and the New Jersey Federal Court does consider the purchase of adwords including a trademark as a use in commerce. The two positions seem contradictory.

Eric Goldman's latest post cites some other cases that cloud the issue even further.

Posted by Bill Slawski at 10:22 AM | Permalink

Judge To Rule By End Of Year On Kinderstart Case

Reuters reports that Judge Jeremy Fogel said he will take until the end of this year to rule on the Kinderstart case. The case was about how Kinderstart's ranking and PageRank fell and Kinderstart sued Google on numerous counts for the ranking drop. The judge recently said, "Assuming Google is saying that KinderStart's Web site isn't worth seeing. Why can't they say that? That's my question." So he will consider this and other questions in his ruling.

Posted by Barry Schwartz at 9:03 AM | Permalink

October 13, 2006

Google Wins Case Against Maughan Over Search Results Snippets

Eric Goldman reports that Google has won the Maughan v. Google case where Mark Maughan filed a suit against Google for the content displayed in the snippets area under a search results listing in Google.com. A search on Mark Maughan Accountancy currently shows the number one listing from www.dca.ca.gov/cba/discipline/ma-me.htm. The snippet looks like:

The complaint was that a search like the above and other variations of it "generates a list of websites 'suggesting' he was disciplined by the California Board of Accountancy for 'gross negligence' and accepting a contingent fee for the preparation of tax returns, which he says are 'veritable scarlet letters in the accounting world'."

Google won the case, and was also rewarded $23,000 in attorneys' fees and costs.

Posted by Barry Schwartz at 11:20 AM | Permalink

October 11, 2006

Google's "False & Deceptive" Search Ads

Ben Edelman's False and Deceptive Pay-Per-Click Ads analysis looks at specific ads on Google.com that seem to violate Google's editorial guidelines and perhaps US laws over "free" services being offered.

Edelman reviews ads that use the words "free" or make other claims that are said to be false.

He looks at "charging for software that's actually free" here, then he looks at "the "completely free" ringtones that aren't" here, and then reviews some "ads impersonating famous and well-known sites" here.

Finally, Edelman reviews the law, ethics, and incentives Google is faced with specific to these ads. He views Google and the search companies as the ones that really profit from such ads and suggests that Google "expand the policy to prevent these scams."

Posted by Barry Schwartz at 9:55 AM | Permalink

October 6, 2006

Yahoo Messenger Worm Targets Google AdSense Click Fraud

The Register reports that a new malware worm has been discovered that targets Yahoo Messenger, sends those users to pages with Google AdSense ads and clicks on them. The Google ads are specifically high priced keywords such as mesothelioma, which is a cancer caused from exposure to asbestos. More details on this worm at the Spyware Guide.

Posted by Barry Schwartz at 3:40 PM | Permalink

September 28, 2006

The Click Quality Council Formed By ClickForensics

ClickZ reports that ClickForensics announced that they will be leading a new group named The Click Quality Council to "discuss Pay Per Click (PPC) quality issues and to ensure their interests are represented in the development of PPC measurement standards." The Click Quality Council has 20 advertisers including names such as VISA and LendingTree and agencies such as Carat Fusion and Agency.com. There were hints that this group would be formed in the BusinessWeek's Good Look At Click Fraud. It is important to note that the IAB seems to be setting up a similar organization, but the IAB will have both advertisers/agencies and search engines involved, whereas the Click Quality Council will only have advertisers and agencies.

Postscript: Some corrections were made to this article.

(1) The Click Quality Council has 20 advertisers. (2) The CQC wants to make it clear that they are not setting up a "similar or competing organization" to the IAB or to SEMPO.

Posted by Barry Schwartz at 9:26 AM | Permalink

September 21, 2006

KinderStart Issues An Amended Complaint Against Google

Eric Goldman wrote that KinderStart has issued a 63 page second amended complaint against Google. KinderStart lost their first case against Google back in July of this year - that case was, in my opinion, ridiculous. This new complaint is even worse. The 43(B)log summarizes the complaints, calling many of them "incomprehensible." Eric Goldman says "I expect Google will file a motion to dismiss, which the judge will grant, at least in part (at minimum, to eliminate the Violation of Free Speech claim). I expect Google to go on the counter-offensive and renew its anti-SLAPP motions."

Posted by Barry Schwartz at 10:51 AM | Permalink

August 24, 2006

Dutch Farmers Site Loses Court Case Against Google

Reuters reports that the Dutch farmer dating site has lost their court case in Amsterdam. The judge ruled that the keywords "farm" and "date" were too general. When Farm Date's owner issued the complaint, they did so because ads come up for sex and pornographic sites, which they claim is "very damaging for Farmdate's reputation."

Posted by Barry Schwartz at 12:43 PM | Permalink

August 16, 2006

Yahoo Class Action Settlement Information Released

Details of the Yahoo class action settlement have been posted at checkmatesettlement.com. What you need to know right now is:

(1) You have until October 14, 2006 to submit a written statement requesting exclusion from the Class (specific guidelines are enclosed in the notice), if you want to be excluded from the class.

(2) You have until November 20, 2006 to download the "Assertion of Right to Participate in Additional Claims Review Process Form" from this site and submit it by registered or certified mail, if you want to participate in the class and participate in the claims review process.

Posted by Barry Schwartz at 8:37 AM | Permalink

August 15, 2006

Farmer Dating Web Site Sues Google Over Porn Ads

INQ7 Network reports that the owners of Farm Data, "a respectable meeting website for farmers," is suing Google for the ads that show up for the query [farm date]. Basically, pornographic sites and sex sites come up for the term and Farm Date says that those ads are "very damaging for Farmdate's reputation." We should know the court ruling on August 24, I will keep you posted on it.

Posted by Barry Schwartz at 10:34 AM | Permalink

July 24, 2006

Judge Hears Objections To Google's Click Fraud Settlement

The Associated Press reports that now that the independent report is out, a judge will consider the fifty-plus objections to the Lane's Gifts v. Google settlement. The judge will hear out advertisers today and tomorrow before finalizing that settlement.

Posted by Barry Schwartz at 9:15 AM | Permalink

July 21, 2006

Independent Report: Google Click Fraud Detection Practices Are "Reasonable"

The Google Blog just posted the independent study on their click fraud detection practices that shows Google makes reasonable efforts to detect click fraud. The report was part of an agreement of the Lane's Gifts v. Google settlement and was performed by Dr. Alexander Tuzhilin, Professor of Information Systems at NYU. Obviously Google is pretty happy about this report and I didn't have time to go through the full 47 page report, but if you have time, I bet you as Search Engine Marketer can learn a ton about the AdWords system. Possibly, Danny will dig into this deeper next week.

Posted by Barry Schwartz at 2:34 PM | Permalink

July 14, 2006

KinderStart Becomes KinderStopped In Ranking Lawsuit Against Google

Kinderstart has lost its case over lost rankings on Google, though the company will be allowed to amend defamation claims relating to its PageRank zero score. If it does by September 29, I suspect that reattempt will go down in flames as well. But the entire case exposes vulnerabilities Google has created for itself with mixed messages over how keyword ranking and Pagerank work.

Google Sued Over Site Penalty By KinderStart.com covers the case being filed back in March and provides a link to the actual suit. It was heard in court earlier this month, and you can review the transcript and analysis of that hearing.

Judge dismisses suit over Google ranking from News.com covers yesterday's ruling, where the claims against Google were dismissed. The judge gave leave for KinderStart to revise on some claims, apparently in particular on the idea that KinderStart was defamed by being dropped to a PageRank of zero as reported by the Google Toolbar.

KinderStart now apparently hopes it can enlist other PR0 sites to file a class action lawsuit against Google (info is supposed to be here, but site is currently down). The KinderStart attorney said:

"The decision suggests that, if properly alleged, Google may be defaming a whole class of Web sites sacked with a '0' PageRank," he wrote in a statement. "If plaintiffs show Google manually tampered with even a single Web site's PageRank, Google's entire claim of 'objectivity' of search results and rankings could collapse."

Sure. Fire away with that class action suit. Two class action suits over click fraud, where defendants have real monetary claims arising out of actual contacts with the major search engines, have netted around $60 million for advertisers for over four years worth of advertising activity. Assuming a somewhat nebulous defamation claim won, I can't imagine the settlement would be for much.

Keep in mind that by default, the PageRank meter is still not turned on, to my knowledge. Toolbar users have to specifically enable it. I've never seen any stats or breakdowns on who uses the PR meter, but that seems to be mainly site owners concerned about SEO, rather than typical web surfers.

Still, the case highlights a Google vulnerability. Google has argued in this case that ranking is subjective, an opinion that it offers about web sites. But go to its technology page, and you get this:

PageRank Technology: PageRank performs an objective measurement of the importance of web pages by solving an equation of more than 500 million variables and 2 billion terms. Instead of counting direct links, PageRank interprets a link from Page A to Page B as a vote for Page B by Page A. PageRank then assesses a page's importance by the number of votes it receives. PageRank also considers the importance of each page that casts a vote, as votes from some pages are considered to have greater value, thus giving the linked page greater value. Important pages receive a higher PageRank and appear at the top of the search results. Google's technology uses the collective intelligence of the web to determine a page's importance. There is no human involvement or manipulation of results, which is why users have come to trust Google as a source of objective information untainted by paid placement.

So what is it, objective or subjective, or argue what's most convenient, as John Battelle raised earlier. The answer to me gets confused by Google's outdated information online plus confusion between PageRank and ranking.

Ranking, or keyword ranking, is where a site appears in response to a keyword search. It's supposed to be an objective decision made by using a computer algorithm to sort through factors, though not said is how some of those factors might have subjective decisions made over them.

PageRank is a numeric score that counts how important a page is based on analyzing the links pointing to it. It is one of many factors that Google uses to decide where a page should appear when you do a keyword search. In other words, PageRank is part of what determines keyword ranking, but it's not the only factor, nor is it the same as keyword ranking.

But doesn't Google say that pages with a higher PageRank appear at the top of the search results. Yes, and it says this incorrectly. That's right, Google's statement on this is flat out wrong. Wrong, wrong, wrong. Wrong. WRONG.

Am I clear enough? But how can I say Google's official information is wrong? First, I can demonstrate it, as I've done before. Try this tool. Here's a search for cars. Notice how the movie Cars is ranked second. The home page for the site listed is a PR5, putting it above several pages ranking below it with a higher PR score. Got Firefox? Try Aaron Wall's new tool that makes seeing this type of thing even easier. End Of Demonstration.

Google has tons of things they've said publicly that get outdated like this or aren't explained properly by those charged to write up copy. In particular, Google has allowed PageRank to be a synonymous term to mean how a site ranks. You can see how this makes life confusing by the first paragraph in the News.com story about the case:

KinderStart, a directory and search engine for information related to children, sued Google in March after it fell to a "zero" ranking in the Google index.

Actually, I believe that two different things happened. KinderStart:

No longer had good keyword rankings, not in the first page of results, but perhaps still buried further down unless it was banned completely. And if it was banned completely, that's not a "zero" rank but instead just called a ban.
Probably had a penalty put on it manually that produced a zero score in the PageRank meter.

The judge does not seem to be saying Google defamed the site through a lower keyword ranking. But he does seem to suggest that the PageRank score in the Google Toolbar meter might have that issue. From Eric Goldberg's nice write-up on the case (and he has a copy of the ruling there, as well):

Google?s statement as to whether a particular website is ?worth your time? necessarily reflects its subjective judgment as to what factors make a website important. Viewed in this way, a PageRank reflects Google?s opinion. However, it is possible a PageRank reasonably could be interpreted as a factual statement insofar as it purports to tell a user ?how Google?s algorithms assess the importance of the page you?re viewing.? This interpretation would be bolstered by evidence supporting Google?s alleged representations that PageRank is ?objective,? and that a reasonable person thus might understand Google?s display of a ?0? PageRank for Kinderstart.com to be a statement that ?0? is the (unmodified) output of Google?s algorithm. If it could be shown, as Kinderstart alleges, that Google is changing that output by manual intervention, then such a statement might be provably false.

I'm actually surprised the judge doesn't seem to know that Google does indeed change that output by manual intervention. That's what the entire SearchKing case was about. First some background on that:

Google Sued Over PageRank Decrease: From Feb. 2002, overview of the case that was filed against Google.
SearchKing Google Rank Restored and The SearchKing Google controversy revisited: From Nov. 2002, on SearchKing beginning to rank again for some terms but the PageRank score itself apparently not back to "normal."
Google Asks Court to Dismiss SearchKing Lawsuit and SearchKing update: preliminary injunction denied: From Jan. 2003, on preliminary injunction being denied.
Court dismisses Google search-fixing case: From June 2003, on a court ruling that PageRank is Google's opinion and that what's "normal" is whatever Google wants it to be.
Four Years Later, SearchKing Regains Google PR: In April 2006, SearchKing regained PageRank.

The case involved another US District Court judge ruling that yes, Google had manipulated the PageRank score showing for SearchKing and that it had a constitutionally protected right to do so, to offer its opinion this way.

Of course, the ruling confuses PageRank and keyword ranking as I've explained above often happens:

PageRanks are opinions -- opinions of the significance of particular Web sites as they correspond to a search query.

Still, since the case was indeed focused about the PageRank meter, I suspect we're safe in knowing this was about PageRank scores getting protected status. And what the KinderStart case now tells us is that Google (and other search engines) also have the right to do keyword rankings however they like.

We'll see if the PageRank scores get challenged again. Certainly Google could short-circuit this by dropping the scores and the meter altogether (please do it). As explained, few people to my knowledge use them, and plenty of site owners are tired of newbie search marketers obsessing over them. PageRank was mainly a marketing tactic for Google that's long since been blowing up in its face.

If the meter doesn't go away, certainly Google needs to take a harder look at what it says about both the Google Toolbar and keyword rankings if it doesn't want to be vulnerable in future court cases (plus just be consistent with the public).

For example, what's a site owner told about a PR0 score:

A page may be assigned a rank of zero if Google crawls very few sites that link to it. Additionally, pages recently added to the Google index may also show a PageRank score of zero because they haven't been crawled by Googlebot yet and haven't been ranked. A page's PageRank score may increase naturally with subsequent crawls, so this shouldn't be a cause for concern. To learn more about PageRank, please see http://www.google.com/technology/index.html

There's no mention of the fact that you might have a PR0 score because Google has manually intervened to reduce it. And as for what it tells the general public:

Wondering whether a new website is worth your time? Use the Toolbar's PageRank? display to tell you how Google's algorithms assess the importance of the page you're viewing.

Again, it's more than just the algorithms being involved. Human are making decisions that impact that score, as well.

In short, Google is continuing to make statements that PageRank is objective to the public, but in two court cases now, it has said the scores are subjective. One case as supported its right to make subjective cases. The other has supported a defendants right to challenge if those subjective opinions are fair or defamatory. We'll see what happens next.

Finally, the entire human intervention thing with PageRank scores brings back the issue of Google long saying there's no human intervention in keyword ranking, such as they used to say about censorship:

Google does not censor results for any search term. The order and content of our results are completely automated; we do not manipulate our search results by hand.

And similar to what they still say here:

Sites' positions in our search results are determined automatically based on a number of factors, which are explained in more detail at http://www.google.com/technology/index.html. We don't manually assign keywords to sites, nor do we manipulate the ranking of any site in our search results.

In general, webmasters can improve the rank of their sites by increasing the number of high-quality sites that link to their pages. For more information about improving your site's visibility in the Google search results, we recommend reviewing our webmaster guidelines. They outline core concepts for maintaining a Google-friendly website.

As I've written before, Google does indeed hand manipulate results, but not in the sense of trying to reorder them. Instead, it manually intervenes in terms of banning some sites or putting overall ranking penalties on them. There's even been updated attempts to help site owners know when they've been banned through the Google Sitemaps program.

Overall, Google's got plenty of mixed messages out there that don't help on the PR front and potentially leave it vulnerable on the legal front, as this case has shown.

Posted by Danny Sullivan at 8:48 AM | Permalink

July 6, 2006

Kinderstart Transcript Available

Eric Goldman posted the Kinderstart transcript and other case documents on his site. Recently, Kinderstart's case was heard in court and the judge requested Kinderstart to provide some more information. The full, 45 page, transcript of the June 30th hearing can be downloaded here.

Posted by Barry Schwartz at 9:15 AM | Permalink

July 3, 2006

Yahoo China To Be Sued For Linking To Sites Selling Pirated Music

Spotted via TechCrunch, Bloomberg reports that Yahoo China is to be sued for linking to sites that sell pirated music. The article claims "about 90 percent of all recordings in China are illegal, with sales of pirated music worth about $400 million annually," according to the International Federation for the Phonographic Industry. A new law in China that came into effect on July 1 "fines distributors of illegally copied music, movies and other material over the Internet as much as 100,000 yuan ($12,500)."

Posted by Barry Schwartz at 10:47 AM | Permalink

KinderStart.com Case May Proceed To Court?

News.com reports that the KinderStart.com case might proceed to court, based on this past Friday's hearing. Kinderstart.com initially sued Google for a site penalty that downgraded the site's rankings in the Google search results. Kinderstart.com claims Google violated antitrust laws, "What Google is trying to do is take out the competition," Kinderstart.com's lawyer said. The judge gave KinderStart.com's lawyers until September 29th to make revisions to the complaint. The judge said, "You can't just file a blanket lawsuit and say, 'We think we're going to find some stuff.'" Also see news brief at ComputerWorld.

Posted by Barry Schwartz at 8:55 AM | Permalink

June 28, 2006

Yahoo Settles Clickfraud Lawsuit

A California judge has approved Yahoo's proposed settlement of a class action click fraud case brought against the company by Checkmate Strategic Group in June 2005.

Yahoo believes the settlement will cover all click fraud claims that have been filed against Yahoo, including a suit filed by Lane's Gifts and Collectibles in Arkansas last year against both Yahoo and Google.

The terms of the settlement include a cash payment of $4.95 million to plaintiffs' counsel and a provision that will allow advertisers to file a claim for Yahoo to investigate potentially fraudulent clicks back through January 2004. Yahoo will pay refunds to advertisers who file claims if it discovers evidence of fraudulent clicks.

"We're very pleased with the terms of the settlement," said Reggie Davis, associate general counsel for Yahoo. "We believe it's a reasonable and fair settlement."

What does it mean for Yahoo advertisers?

The cash payment is far less than the $90 million settlement Google agreed to last March to resolve the Lane's Gifts class action click fraud case. In that case, up to $60 million was allocated for credit to advertisers, while plaintiffs' council received $30 million.

The Yahoo settlement differs from the Google settlement in other ways, as well. Google is offering credit to advertisers, rather than cash refunds, with a cap of $60 million. Yahoo, by contrast, is offering cash refunds, and there is no ceiling on the amount it will refund if it finds evidence of click fraud, though the company is optimistic that the refund amounts won't be onerous due to the safeguards it has had in place.

Yahoo says it believes the favorable terms are due to the strong position it took maintaining that its proprietary system does a good job at protecting advertisers from click fraud. To bolster its position, Yahoo invited the plaintiffs' attorneys and their experts to meet with Yahoo's clickthrough protection team, examine its systems, ask questions and attend presentations to better understand the controls the company has in place to filter out questionable or fraudulent clicks.

Yahoo says that its clickthrough protection system has identified and not billed advertisers for billions of clicks during the past eight years, all the way back to the early days before Yahoo purchased Overture and its sponsored listing technologies. Clicks not billed for included obvious click fraud, but also other clicks that the company believed shouldn't be billed to advertisers (for example, blocked IP addresses, double-clicks, back browser clicks and so on).

Yahoo said that as part of the settlement it is taking five specific steps to combat click fraud:

1. The company is extending the claims period for advertisers suspecting fraudulent activity from sixty days to two and a half years, or back through January 2004. Yahoo will investigate all claims filed under this one-time extension and offer cash refunds to advertisers if it finds questionable activity.

Judge Taylor, a retired federal judge, will be overseeing the extended claims process. His role will be to ensure that Yahoo sticks to the agreed-upon process, and he will also be available to review advertiser appeals if they are not satisfied with the results of Yahoo's investigation.

2. The company plans to appoint a dedicated traffic quality advocate to act as ombudsman for advertisers. 3. Once a year Yahoo plans to host a panel of individual advertisers to tour the company's clickthrough protection headquarters, allowing them to ask questions and provide feedback. The company will also seek advice from this panel.

4. Yahoo plans to work with reputable third parties to develop an industry wide definition of click fraud, a list of recognized click bots, and take other measures to garner awareness of the issue and what's being done to combat the problem.

5. Yahoo plans to build a "traffic quality resource center" for advertisers, providing much more information about traffic quality, including extensive FAQs about the company's click-through protection methodology.

In addition, Yahoo said it is taking steps beyond the terms of the settlement to respond to advertiser needs.

"Advertisers are interested in understanding more about click through protection and click fraud," said John Slade, senior director, Yahoo! clickthrough protection. He said the company plans to provide advertisers with better visibility in turnaround time on complaints on click fraud, responding within a specified time frame.

He said Yahoo will also offer more clarity around refunds on click fraud, including additional detail describing more specifically what the company has found in refunds or credit notices—especially in better documenting the differences between click fraud and other traffic variances that might be misinterpreted as click fraud.

More information on the settlement in Yahoo's official press release, Yahoo! and Click Fraud: Our Commitment to Protecting Advertisers.

Posted by Chris Sherman at 8:24 PM | Permalink

KinderStart.com To Be Heard In Court Friday On Google Penalizing Site

Webuser reports that the KinderStart.com lawsuit against Google for penalizing their site will be heard in court this Friday. It is not clear if there will be a ruling on Friday, the article does state that the judge "will rule at 9am in California (5pm BST) on nine counts, including whether or not Google should warn sites about changes in their ranking as well as on financial damages KinderStart is seeking." Can you imagine the buzz and controversy in the SEO community if Google loses the case?

Posted by Barry Schwartz at 12:32 PM | Permalink

Google and Yahoo Come to the Aid of Craigslist

As many people already know, Craigslist is being sued under federal housing discrimination law for allowing the posting of allegedly discriminatory ads seeking certain types or classes of roommates and tenants (e.g., based on religious affiliation or sexual preference). Legally you can't post those kinds of ads in the newspaper and the newspaper that runs them is liable for housing discrimination. For those interested, here's a copy of the complaint (pdf format) against Craigslist.

Google, AOL, Yahoo, Amazon and other online firms recently filed what's called a "friend of the court" brief in support of Craigslist in the matter. As Craigslist CEO Jim Buckmaster points out in this Law.com news item, "Most of these companies/organizations have as much (or more) at stake in this matter than we do."

At stake is whether online sites should be compelled to actively police the postings of their users to ensure compliance with federal and state laws. The trademark policing issue in paid search is a cousin of this suit and raises some of the same general questions about the duties of online publishers.

Eric Goldman's Technology & Marketing Law Blog discusses why the case against Craigslist probably won't succeed based on existing legal precedent. According to Goldman, the laws currently treat print and online publications differently. The example he uses is the newspaper one: a print newspaper can be liable for libel for publishing a defamatory letter to the editor while a newspaper website publishing that same letter from a user is not similarly liable.

That different treatment and outcome doesn't really make sense logically and will probably be changed eventually. But for now, if Goldman's analysis is correct, it looks the plaintiffs will fail and Craigslist will prevail.

Posted by Greg Sterling at 11:22 AM | Permalink

June 7, 2006

AdWords Advertiser Pays $2,000 After Misleading Searchers

ComputerWorld reports that a man who was selling "ineffective antispyware" software through AdWords has paid $2,000 to settle the dispute out of court. Seth Traub, of New Hampshire, used Microsoft's name in the ads, such as "Microsoft AntiSpyware" for keyword searches on "Microsoft spyware cleaner" or "Microsoft antispyware." The software Traub sold did not remove spyware, in fact, it reportedly made "users' computers less secure." He settled out of court by paying off the legal costs and attorney's fees.

Posted by Barry Schwartz at 8:09 AM | Permalink

June 5, 2006

Google Stops New Ranking Lawuit With Anti-SLAPP Threat; Previous KinderStart Suit Continues Despite This

Google Avoids Another Lawsuit Over Rankings (For Now)--Roberts v. Google from Eric Goldman at his Technology & Marketing Law Blog looks at how a case involving rankings on Google got dismissed before going to trial, thanks in large part to a counter-suit that Google threatened.

Mark Roberts was claiming breach of contract, in part because of Google's add URL feature and help pages supposedly formed a promise that his pages (which he doesn't say but assumes are most relevant) should be top ranked. They were in 2003 but later dropped.

Google threatened to file an anti-SLAPP motion against Roberts, a means of effectively getting the court to agree that the case is without merit and recovering costs. I haven't read the actual documents in Roberts case, but from what Eric describes, I have no doubt it would be easy to dismiss any claims of promise or contract.

A somewhat similar case (over ranking issues and the laughable claims being made) involving KinderStart and Google apparently continues, despite Google having actually followed through with an anti-SLAPP motion on that.

Posted by Danny Sullivan at 3:39 PM | Permalink

May 15, 2006

Snap.com's New User Interface & Adds New Features

Snap.com has released a new user interface for its search results page. As you begin typing your query, it does the whole Google Suggest, LookAhead, AllTheWeb LiveSearch auto complete suggested query thing. Then you submit your query and the interface snaps (literally) into a two column view. On the left are the search results and on the right is a preview of the landing page of the result selected on the left. This is a more, in your face approach to Ask.com's Binoculars, that allows you to mouse over to see a site preview. For the full release, download the PDF document.

Postscript From Danny: See also Upstart search engine blurs the lines of advertising from the Associated Press, which covers issues raised over whether Snap is doing proper disclosure of paid listings. Meanwhile, Overture Founder Starts Pay-Per-Action System from the San Jose Mercury news covers the move to a cost-per-action payment system for ads.

Posted by Barry Schwartz at 10:27 AM | Permalink

May 12, 2006

5% Of Search Results Lead To "Dangerous Sites"

Andy Beal reports on a Wall Street Journal article that claims 9% of paid search ads lead to "dangerous sites." Three-percent of organic results lead to risky sites, in comparison to the PPC ads. So on average, the article shows that "roughly 5% of the search results on average were risky sites." The SiteAdvisor study estimates a searcher will click to an "unsafe site from a search engine once every 15 days." Risky sites are defined as sites that can "infect consumers' personal computers or expose them to nuisances such as spam email."

Postscript by Detlev Johnson: You can find additional information at BBC with respect to natural listings that lead to risky sites. As much as 4-6% of search results in natural listings are categorized as risky, while sites in the sponsored listings can be 2-4 times as numerous.

The sheer volume of clicks this can account for is scary - 285 million per month. Search engines are known to try limiting their users from accessing risky sites through their search engines; at least as much as they combat spam. Their efforts will need to continue and be ongoing similarly to fighting search engine spam.

Posted by Barry Schwartz at 9:16 AM | Permalink

May 5, 2006

Ad Agency Sues Maine Blogger Over Search Accusations

Ad Agency Sues Blogger for Defamation from Ad Age covers an ad agency promoting tourism for the state of Maine suing a Maine-based blogger for defamation. The search connection? The blogger, Lance Dutson, had highlighted out broad matched search ads were hurting his own clients or not perhaps attracting the audience the state wanted. And a further search connection. The ad agency, WKPA, is concerned that searches on its name will now bring up Dutson's criticisms.

Dutson has a variety of posts on the subject on his blog, most in this category. WKPA lacks its own blog. Expect that to change when it discovers that search marketing has two components -- the ads you buy and the PR you get from natural organic results (which aren't helped by its all-Flash site).

Meanwhile, Seth Finkelstein looks at how the broad matching ads may have been misinterpreted by the Maine Department Of Tourism as an accusation, rather than an explanation of poor targeting.

Postscript from Jennifer Slegg: Maine State Rep Stephen Bowen is calling for the Maine Office of Tourism to suspend its contract with WKP, pending the results of the lawsuit, in order to distance itself from the agency.

Postscript from Barry Schwartz: The ad agency backed down from the lawsuit, more details here.

Posted by Danny Sullivan at 10:21 AM | Permalink

April 27, 2006

Revisiting Search Engine Ad Breaks

Originally, the news of Google's broad matching change had me thinking that Google was adding more ad positions to their search results pages. I've since talked with Google and understand now this isn't the case. I've broken what is happening into a new story. Meanwhile, I think this story is still a useful reminder on the number of ad positions each search engine offers across the board.

Here's the rundown I did from June 2004:

2004

Paid Links

Free Links

Total

% Free

Yahoo

71%

AOL

56%

MSN

55%

Google

50%

Ask

48%

Average

56%

And the situation today?

2006

Paid Links

Free Links

Total

% Free

Change

AOL

56%

MSN

56%

Ask

56%

Google

48%

-2%

Yahoo

42%

-30%

Average

51%

-5%

Google*

42%

-13%

The two big players -- Google and Yahoo -- have decreased the percentage of free listings shown. To be clear, on Google, you still have the same ten free listings shown since Google began, but they've added another paid spot. On Yahoo, you have 10 less free listings than they used to show, plus they've added more paid spots.

Aside from number of ads, the positioning is an issue. Google's long had many ads running down the side of its page, something the other major players have all largely imitated. To me, that's not been irritating, because plenty of editorial listings were still "above the fold" or visible without scrolling.

In contrast, dumping ads on the top of pages might drive users away. Ask used to do this quite aggressively, as Ads On Ask & Could Paid Listings Take Prime Position? from last year covers in more detail. Ask Jeeves to Reduce Paid Ads covers how Ask pulled back on the ads because it found fewer ads boosted user retention -- at least in the US. In the UK, they'll still run up to four ads at the top of the page and five below.

FYI, Google did increase from two to three ads at the top of results last August (it also has been testing ads at the bottom of pages since November).

For the record, here's the current top-bottom-side breakdown in chart form:

2006

Top

Bottom

Side

Paid Links

% Top

AOL

50%

MSN

38%

Ask

38%

Yahoo

29%

Google

27%

Average

36%

Posted by Danny Sullivan at 1:51 PM | Permalink

April 21, 2006

Judge Approves Class Action Lawsuit Settlement of $90 Million

News.com reports that a judge from Arkansas has approved the $90 million settlement issued between Google and Google AdWords advertisers. Of the $90 million, $60 million will go to the advertisers and $30 million will go to the lawyers. Google said, "We are pleased that we were able to reach an agreement and are pleased the judge has granted preliminary approval." Of course they are pleased, this is a great outcome for Google.

Posted by Barry Schwartz at 11:10 AM | Permalink

March 30, 2006

Protecting Your Online Intellectual Property

The law is still in its formative stages when it comes to the web, search engines and other online technologies. What do you do when someone is uses your trademark in a paid listing, or is scraping your content without permission and making money with contextual ads? Or what if a competitor alters your press release to point to their own site? These and other questions were debated by a panel of legal experts at a recent Search Engine Strategies panel, covered in today's SearchDay article, Trademark Protection, Copyright and Search Engines.

Posted by Chris Sherman at 9:07 AM | Permalink

March 20, 2006

Google Sued Over Site Penalty By KinderStart.com

Reuters reports that KinderStart.com is suing Google over "downgrading its search-result ranking without reason or warning." There are a total of seven counts to the suit (download PDF);

Violation of the right to free speech under the U.S. Constitution and the California Constitution
Sherman Act Section 2: Monopolization
Unfair competition under California Business & Professional Code 172000
Unfair competition under California Business & Professional Code 17040
Breach of implied covenant of good faith and fair dealing
Defamation and libel
Negligent interference with prospective economic advantage

I have my additional thoughts here, but I would expect Danny to comment on this later today (he is a bit busy now).

Want to discuss, join the Search Engine Watch Forum thread named Google sued for penalizing site.

Posted by Barry Schwartz at 9:37 AM | Permalink

December 23, 2005

Google Says Don't Worry, AOL Won't Change Us - But There's Wiggle Room

Seeking to reassure searchers that Google has not sold out to gain the AOL deal, About the AOL announcement from Google vice president of search products & user experience Marissa Mayer offers words of reassurance, as well as a flat out denial that Google will ever have banner ads on the Google home page or search results. First of all, it's nice to see Marissa's finally gotten a better title and VP status! But now let's talk wiggle room.

First, the statement on banners:

There will be no banner ads on the Google homepage or web search results pages. There will not be crazy, flashy, graphical doodads flying and popping up all over the Google site. Ever.

So there you have it. Couldn't be more clear cut and hard to reverse, if they change their mind. But the key word here is "banners," which means those horizontal ads typically at the bottom of the page that many learned to ignore after they powered the early growth of the web. You know, like you'll find here on the types of image ads Google itself puts on sites across the web.

Notice there's lots of other ad formats. Why, there are big leaderboards. There are long skyscrapers. How about a medium rectangle? None of these are banners; none of these technically are ruled out by the promise today.

I'm going to follow up with Google on this. My assumption is that "banners" was probably something used quickly and in a shorthand way to mean large, graphical stuff isn't coming to Google and specifically the Google home page and web search results (other parts of Google aren't ruled out by this ban)

Having said that, I just talked with a trusted reporter who tells me that the idea of thumbnails or small graphical images associated with text ads may very well come. Again, I'm doing follow-up -- but if these do come, saying you won't do banners or "crazy, flashy, graphical doodads" probably wouldn't apply to these types of units. There's wiggle room for them.

I've already covered earlier why some small use of graphics wouldn't necessarily be a bad thing. But if they should come after what seems a flat-out statement, that's going to raise some eyebrows.

It's also worth reminding that Google has already -- and for some time -- run graphic units to promote both its Google Desktop and Google Toolbar applications on its search results pages. John Battelle gives you a screen shot of the toolbar promo here from October, but that had already happened previously months before, as well. Here you'll see a similar promo for the Google Desktop from back in March -- and I could swear I've seen this or the toolbar ad come up for me last week.

As for the Google home page, it's also worth remembering that Google's put graphic units there as well. Here's an example of that toolbar ad on the Google home page from back in October, and that's hardly the first example. It's not a new thing. It's just a sporadic one.

Finally on image ads, Google's said previously that graphical ads might show up on Google Images and Google Video as part of the deal. So while "crazy, flashy, graphical" stuff may not be on the Google site, other graphical stuff deemed relevant, useful and non-intrusive probably will.

Beyond image ads, Google reassures that results themselves won't be skewed to favor AOL and that "indexing more of AOL's content" is just part of the overall mission of including "all the world's information."

Sure, I believe that. But here's the thing. If Google's doing what it does for everyone, then it should have never -- ever -- been put into the press release on the deal. It's either a business deal arrangement or not. If it's just normal stuff -- which I fully believe will be the case -- then don't let your partner talk it up to score points with investors. Don't sell out in that way, if only that you then have to backtrack to reassure your own users you're really not selling out. By this measure, someone buying AdWords for Google might as well run a release saying that they expect Google will also be working with them to improve content indexing.

The issue of ad credits AOL is getting is addressed, with reassurance that while AOL has some credit to spend, that won't let it necessarily jump ahead of anyone else. Of course, $300 million is a lot of credit to spend, and AOL may not be as concerned about ROI impact as many of Google's regular advertisers are. It'll change the marketplace at least a tiny bit, but fair to say, not in the way of giving AOL some type of favoritism.

What's not addressed is the promotion of AOL video content. Google's going to showcase AOL content in Google Video in some way. I first heard of this when Saul Hansell of the New York Times told me about the plans, when talking with him for a story he later wrote. But the video arrangement didn't show up in his story, so I assumed it was a rumor that Google discounted when he followed up with them. Then in Elinor Mills' article at News.com after the formal announcement, the mention of showcasing was there.

Go to Google Video now. There are two tabs on the home page, with the default to show you popular stuff right on the home page -- which at the moment I assume really is popular stuff based in some way on search activity.

What's the showcase arrangement going to do? Am I going to get "Featured Videos" on the home page now like over at Yahoo Video, where I'm almost certain the only thing making them "featured" is arrangements with content providers?

If so -- or if AOL gets any type of presence on the Google Video home page at all -- that's a radical departure for Google. It has never to my knowledge given a company any type of preferential treatment of that sort, other than perhaps the deal to use Answer.com as the default dictionary provider. But with Answers.com, Google can at least fall back to say that they've done a review and think they are the best provider. Why would AOL be featured? Yes, they've got great content. But not because they are the best provider. It's because a business deal was struck.

As I said, I'm doing follow up here, to the degree I can during the holiday period. It's easy to speculate and worry now, while my preference is really to see what they actually do. The reassurances from Google are good, and they've got a long history of being careful to protect the user experience and the impartial quality of dealing with content. But having said that, they are having to put out such reassurances now quite simply because they allowed doubts to be introduced when the deal was announced. A statement like this from Time Warner in the release:

A critical piece of this strategic alliance will be our content, which we will be making more accessible to Google users.

is now forcing Google to do damage control in the way we haven't seen since Google CFO declared clickfraud being a big threat a year ago. If Time Warner content is important to Google users, it should have been included already before this deal. It definitely shouldn't have been mentioned as part of it, generating doubts that other content won't be as accessible.

Posted by Danny Sullivan at 8:20 AM | Permalink

November 9, 2005

More On Office Depot Versus Staples Over Google Ads

We mentioned the case of Office Depot suing Staples over ads on Google last month. Now Eric Goldman takes a look at the case in more depth in Keyword Lawsuit Between Office Depot and Staples on his Technology & Marketing Law Blog. He also posts one of the court documents.

Posted by Danny Sullivan at 5:55 AM | Permalink

October 21, 2005

Office Depot Sues Staples Over Google Ads

Via Threadwatch, Office Depot Sues Staples Over Ads Placed on Google (paid sub. required) from the Wall Street Journal covers Office Depot filing suit earlier this month in US District Court in Palm Beach, Florida accusing Staples of trademark infringement, false advertising, unfair competition and deceptive trade practices over ads linked to words that are also Office Depot trademarks. Staples apparently had ads coming up for searches on [viking], which is an Office Depot subsidiary. Ads led to Staples-owned web sites.

Posted by Danny Sullivan at 1:24 PM | Permalink

October 20, 2005

Avoiding Legal Gotchas with Search Engines

It's still very early in the game when it comes to search engines and legal issues. Although a number of lawsuits have helped clarify things like appropriate content in meta tags and whether using trademarks is fair game, lots of other issues are still unclear and up in the air.

It's important to understand these issues if you're a search marketer, both to stay out of trouble and to know what recourse you have if someone poaches your intellectual content. A panel of legal experts discussed these issues on a recent Search Engine Strategies panel, and guest writer Grant Crowell caught the session, reporting on it in today's SearchDay article, Copyrights, Trademarks and Search Engines.

A longer version of this story for Search Engine Watch members goes into more detail about various methods to protect your intellectual content, including how to safeguard images from being copied, and a checklist for taking action if you've found that your content has been stolen and illicitly used elsewhere on the web.

Posted by Chris Sherman at 6:07 AM | Permalink

September 15, 2005

Class Action Suit On Click Fraud STILL To Stay In Arkansas

Google Suit Sent Back to State Court from the Associated Press notes that a class-action lawsuit against Google, Yahoo and other search engines over click fraud accusations will STILL not move to US federal court. If I understand right, a request for this move was denied back in July. Now it looks like an appeal of that decision was also denied. More about the case here.

Posted by Danny Sullivan at 7:23 AM | Permalink

August 16, 2005

Miva (aka FindWhat) & Yahoo Setting Paid Listing Patent Dispute

Miva settles patent case with Yahoo for $8 million from the Associated Press covers how Miva -- the former FindWhat -- has settled a patent dispute with Yahoo over paid listings. The settlement amount of $8 million is tiny compared to the $328 million or so Google paid Yahoo to settle last year. However, I thought even that higher amount was cheap for Google to get clear of the dispute. As for Miva, the company will actually pay more than $8 million. Yahoo will get an undisclosed percentage of all ad revenues Miva generates through using its pay-per-click system.

Posted by Danny Sullivan at 9:30 AM | Permalink

August 8, 2005

Lawsuit Claims Google Overcharged Advertisers

Google sued over claims of excess advertising fees Source: Reuters Google Inc. is being sued over accusations that it overcharged advertisers who use the Web search giant's paid search advertising program...The proposed class-action suit, filed on August 3 in State Superior Court in Santa Clara, California, accuses Google of charging in excess of advertisers' "daily budgets," under which Google allows an advertiser to limit how much it spends each day.

Thanks to GB for the news tip.

Posted by Gary Price at 8:51 PM | Permalink

July 13, 2005

Click Fraud Case Will Stay In Arkansas

Federal judge sends Internet-ad suit back to state court covers how an attempt to get a click fraud case filed against Google, Yahoo and others moved to the US federal court system has failed. It will remain within the Arkansas state court system. The case came up earlier this year and is notable as the first major one seeking class action status.

Posted by Danny Sullivan at 8:58 AM | Permalink

June 6, 2005

More Questions On Adware & Search Ad Distribution

Last month, we wrote about allegations that Ask Jeeves was gaining distribution through misleading installations of software. A month later, and the allegations continue, plus the issue grows to involve the entire industry more generally. A recap of some recent stories, plus a closer look at how I come away mislead by one of Ask's bundling partners.

More on Google's Role: Syndicated Ads Shown Through Ill-Gotten Third-Party Toolbars out today from adware/spyware researcher Ben Edelman looks at:

Google ads appearing through Ask Jeeves toolbar and software distribution, which has come under fire for possibly misleading installations.
Google ads appearing through IBIS WebSearch toolbar distribution, despite practices by that partner that seem to violate Google's software principles.

Meanwhile, Uneasy Rider out last week from Newsweek looks anew at accusations that the Ask Jeeves-owned MySearch toolbar gets installed unknowingly by computer users. Installations mean traffic for Ask Jeeves, but the accusations of user hijacking could sour the planned InterActiveCorp purchase of the company.

The story recounts Ask Jeeves putting the blame on distribution partners doing things they shouldn't and facing termination by Ask if caught. Barry Diller, chair and CEO of InterActiveCorp, dismissed concerns as an issue in a recent analyst conference, the article also notes.

The Newsweek article was sparked by Ben Edelman's recent investigation into alleged misleading software installation practices by Ask Jeeves. Ask sent me its responses and denials of wrongdoing, which I published in my Ask Jeeves Denies Adware Installing Charge & Other Accusations post. But I heard soon afterward from Edelman feeling the company really didn't answer things fully. He emailed me:

I don't think AJ has responded at all to Ask Jeeves Toolbar Installs via Banner Ads at Kids Sites or Comparison of Unwanted Software Installed by P2P Programs: iMesh. Furthermore, they've said they've terminated the single distributor I showed to have improper practices in my video posted earlier this month. But they've said nothing about how this happened or how this problem could have continued without them noticing. And they've made no statement that's at all relevant as to the fact that I have multiple other videos on file, showing other distributors doing the same thing. I can't characterize so incomplete a response as "a response" as that term is ordinarily used.

Up Close With iMesh

Curious to see for myself, I took at look at iMesh today, one of Ask's bundling partners mentioned in Edelman's original report and again in his latest one. The iMesh home page tells me I can use it to connect with fire sharing networks to find music and video on the web. It promises things like "100% Clean - No Popups - No Spyware - No Trojans." The home page says nothing about installing a general purpose search toolbar. The closest it comes to this is saying:

Search for Music and Videos on iMesh from within Internet Explorer!

Clicking to download the software takes me over to Download.com's download page for the program. That page also says nothing about getting a general purpose search toolbar as part of this software.

How about the install? A very long privacy statement comes up. If you read through this, about midway down, you discover for the first time that a toolbar comes along as part of the setup:

10.3 The iMesh Software installs a toolbar into the web browser (the "iMeshBar") on Your computer. Upon receiving Your search query, the iMeshBar conducts a search with the web browser and in the course of processing a given search query, sends a request to Licensor's servers. This request includes the keyword query, time of day, browser type, default language setting, IP address, an anonymous unique ID, and a code which identifies the distribution source of the iMeshBar used by You to conduct your search. If the search query is being generated as the result of a misspelled URL or search term entered in to the browser address bar, Licensor also receives the misspelled URL address or search term. Licensor uses this information in order to properly process your search request. For example, this data provides Licensor with: information on which language You prefer to use; aggregated click information for the purpose of ensuring that Licensor's search partners are appropriately compensating Licensor; information that allows Licensor to make accurate payments to its distributors; aggregated usage and retention information; and aggregated search query information for the purpose of further monetizing commercially oriented search keywords.

Here's what I take away from that:

I can search for files (such as music and video, as promised on the iMesh home page) from a toolbar in my web browser.
Nothing is said that other types of searches are offered.
If I enter a query into my browser address bar or enter an incorrect URL, that will be turned into a general search request

Carrying on past the agreement, the installation program says it will install iMesh but makes no mention of any other products or software that will come along for the ride.

iMeshBar That Doesn't Do File Search

So what happened? After my installation, the iMesh search application came up. This let me search for music and files as promised. I did a search for "cars" and got lots of promising MP3 files listed.

I also got the iMeshBar toolbar installed into my Internet Explorer browser. This is what's supposed to help me search for files via iMesh, as promised on the iMesh home page. However, that's not the default function. By default, if you enter a word and hit return or click "Search," you get back results from an iMesh-branded version of Ask Jeeves-owned My Web Search.

What if you want to change the default to file search, as promised? You can't. An option to change the default behavior is listed at the top and bottom of search result pages. However, you can only change to one of four major web search providers: Google, Yahoo, Ask Jeeves or LookSmart.

There is a special iMesh button on the toolbar. Does pushing this get me actual iMesh music/video/file results in my browser, as promised? Nope. What it does is cause the iMesh software application to fire up, and then the results appear over there, in that entirely separate application.

iMesh Verdict? I Felt Mislead

So what's the conclusion about iMesh? Has this Ask Jeeves partner done wrong by me? Yes, though I honestly expected worse.

I was never told I'd get a general purpose search toolbar as part of the installation, but I did.
I was promised a toolbar in my browser to deliver actual iMesh file search results, and that didn't happen.
My default browser search behavior was surprisingly unchanged. iMesh didn't try to change the default search provider that's linked to the native Search button in IE. However, it may be because the Google Toolbar already made changes earlier and resisted alteration. It could also be that my Microsoft anti-spyware tool blocked this change from happening.

Overall, I find myself generally agreeing with what Edelman said about the installation when he looked at it. iMesh didn't even hint that I'd get a new general purpose search toolbar in my browser, but that's what it gave me. Contrast that against the statement Ask Jeeves said it wants to have happen after Edelman's claims came out:

We want consumers to download our toolbars for the great functionality we offer and the volume of decidedly positive feedback combined with the millions of active users who have sent over 1 billion smileys to date seems to indicate people are doing just that.

With iMesh, nothing I've seen indicates that a consumer downloading iMesh had any clue that they'd also get an iMeshBar providing general web searching via Internet Explorer, rather than actual file searching. At the very least, requiring iMesh to link to the help page about the iMeshBar from the iMesh home page would have provided a better clue.

Getting Rid Of iMesh

Done with my testing, could I free myself of iMesh's clutches, often an issue with adware and spyware installations? iMesh provides its own uninstall program that's easily found via the iMesh program folder. In addition, there's an option to remove iMesh from the Windows Add/Remove Program control panel. So, two easy ways to remove iMesh.

Ah, but what about the iMeshBar itself? The Windows Add/Remove tool shows this as a separate installation. That leads me to wonder if removing iMesh using its own uninstall tool will still leave the toolbar behind. I suspect this is the case. I know that after using iMesh's own tool, iMesh disappeared from the Windows Add/Remove tool, implying it was gone from my system. The iMeshBar add/remove option remained, however.

I haven't yet rebooted my computer, something the iMesh install program says it needs me to do in order to finish the job. Once that happens, it could be that the iMeshBar will also disappear. I'll report back here on what happens. But if the iMeshBar remains, it's another misleading point to me. If I say to remove iMesh -- and you don't clearly indicate that iMeshBar is a separate program when installing -- then you should take it away when I uninstall.

By the way, the Newsweek article noted above sheds some new light on the Ask situation, with Ask saying it is now monitoring uninstall rates across its various distributors. If it sees a spike, then it supposedly knows a particular distributor may be doing something wrong.

What I'd like to see -- as author Brad Stone of the Newsweek article points out as a problem -- is a clear affiliation between Ask and these products.

For example, go to My Web Search and try to discover how it's affiliated with Ask. The Ask brand is nowhere to be seen that I can easily spot, despite the fact that Ask owns the property. Drill into the help page about the toolbar, and there's still no mention. If I go into the help page about My Info, THEN notice a page about help for the separate My Way site, THEN go to the About Us page, I finally discover:

My Way is a property of Ask Jeeves, Inc.

That's a lot of work, if I want to understand the parent company behind all of this. How about an About Us link right on the My Web Search site itself that identifies Ask as the owner. Then if people have issues, they can take it right to the top.

I want the same on cobranded sites like the one iMesh operates. The About My Search page there, listed on the home page, should make it clear that Ask Jeeves is a partner in what's being shown. That should be a requirement for Ask partners, along with a way to report if you felt you were someone misleading directed to the site. That way, if someone has a problem with an Ask partner, the message can easily be delivered.

Growing Concern On Ad-Backed Adware & Spyware

The latest articles from Edelman and Newsweek are just part of a trend of renewed focus on appropriate ad support of adware and spyware. Some further reading:

Are ad networks getting a free pass? from MarketWatch is a look from last month at how New York Attorney General Eliot Spitzer and others are looking at legal aspects to stem spyware. The worry for ad providers such as Google, Yahoo or their resellers is that participation with such programs -- even indirectly -- could come back to haunt them. It also looks at how much having a code of conduct may protect providers.
Spyware, Adware, and the Future from iMediaConnection looks at a recent panel on spyware and adware about advertisers themselves perhaps wanting to disassociate from being show via adware. Of course, if you buy search ads with Google, you can't prevent this unless you exclude everything but Google's own sites. On Yahoo, you can't prevent this at all. Source exclusion for the extended search networks both provide isn't offered.
FindWhat Profits Down Amidst Tough Decisions from last month looks at how FindWhat said recently it would remove distribution partners generating a "meaningful percentage" of clickthroughs that aren't converting for advertisers. Adware/spyware traffic isn't specifically called, but some distribution via these means is probably involved.
Big Firms' Ad Bucks Also Fund Spyware from the Los Angeles Times from May looks at how adware and spyware generates cash for ad networks, with intermediaries often sitting between the main ad providers and the distribution partners.
FTC Honcho Praises Spitzer's Suit Against Adware Purveyor from MediaPost in May has a US Federal Trade Commission representative suggestion that putting out ads via software tie-ins without proper disclosure might be considered deceptive advertising.
Edelman Reports on Google's Role as "Advertising Intermediary" from Ben Edelman earlier this month looks at how Google ads get distributed via middleman/intermediaries via software that may be installed in a misleading fashion.

Want to discuss? Visit our forum thread, Smore' Bad PR for Ask - MySearch Toolbar Installs

Posted by Danny Sullivan at 5:09 PM | Permalink

Gambling Ads Lawsuit Against Search Engines To Go Ahead

According to this press release, a case against major search engines and gambling ads filed last year in California is to move ahead. The court failed to strike down core allegations in the case, says the law firm behind the action. Lawsuit Filed Over Search & Gambling Ads from Search Engine Watch last year has more background on the case.

Posted by Danny Sullivan at 1:58 PM | Permalink

April 6, 2005

More On Click Fraud, The Lawsuit & The Need For Third Party Auditors

After breaking the news yesterday of a potential class action lawsuit over click fraud against major search engines, the Wall Street Journal is back today with a look at the problem itself.

In 'Click Fraud,' Web Outfits Have A Costly Problem (subscription required) covers familiar ground to many readers. It opens with an advertiser getting worried ironically when refund checks for small amounts arrived from Google and Yahoo for "unusual" or "invalid" clicks. It recounts that the industry does see click fraud as a challenge -- including Google's CFO having declared this a big issue last December. Of course, as the story points out, there are some safeguards already in place.

More background on click fraud is covered, and then the article returns to the main anecdote of the advertiser who investigates further suspecting a rival and encounters what he felt was little help from Yahoo and Google. The Massachusetts attorney general's office declined to jump in, either.

Ultimately, he cut his monthly ad spend on search from $20,000 to $1,000: "Am I willing to take the risk and stick my neck out there at maybe $15 or $20 a click? Not now."

Meanwhile, the AP in Internet giants sued over click fraud has a few more details about the case, including that two initial plaintiffs have dropped out and that a move to try it in the US federal court system has been requested. FYI, we hope to have a copy of the case that we can post on the blog shortly.

Can't read enough about click fraud? Here are some stories recent stories also worth reading:

Click Fraud: Problem and Paranoia from Adam Penenberg at Wired recounts his experiences in being on our click fraud panel at SES NY last month. He covers both issues raised by panelists and audience members who have experience fraud, as well as general background on the problem.
Click Fraud In the Spotlight from ClickZ last month looks at the growing concern and attention that the issue of click fraud has been receiving.
High Noon for Click Fraud from MediaPost last month covers for steps that search marketer Chris Bowler of Agency.com would like to see happen: search advertisers taking more responsibility; better monitoring on the part of search advertisers; insurance policies and an auditing and certification program.

I especially agree with that last part. It one of the solutions I suggested on the click fraud panel we held, and I've heard other say the same. I'd love to see the major search engines certify third-party companies that would audit suspected clickfraud.

For the typical advertiser, the difficulty is even knowing how to begin to read the fingerprints of clickfraud. Dedicated companies, on the other hand, aren't starting from scratch each time.

The plus to the search engines is that this would give them people who are experienced in really ferreting out what is click fraud -- and what is not -- and presenting that in a way they can easily act upon.

Still want more on click fraud? Search Engine Watch members can use the click fraud category link below for a compilation of stories about the problem and advice on spotting it that goes back for several years.

Want to discuss? Visit our forum thread, Click Fraud Suit Filed Against Search Engines.

Posted by Danny Sullivan at 8:28 AM | Permalink

April 5, 2005

Google Removes Child Porn Post & Reports To FBI

Child Pornography Complaint at Chilling Effects illustrates how Google received a complaint of child pornography in its Google Groups service, causing the company to remove the post and report the incident to the FBI. Google reporting to the FBI? As Chilling Effects explains, it's something electronic service providers are apparently required to do. Other search engines have probably taken similar actions, but Google is still unique to my knowledge in publishing its takedown actions to Chilling Effects.

Posted by Danny Sullivan at 7:41 PM | Permalink

Click Fraud Suit Names Google, Yahoo & Other Search Companies

Rumors of a class action lawsuit over click fraud have been circulating for over a year. Now one may have finally arrived. Spotted via the SEO Book blog, Internet Firms Face Legal Test On Advertising Fees from the Wall Street Journal (try this link if registration has been put back on) briefly describes a case filed in February by a group of advertisers against Google, Yahoo, Ask Jeeves, AOL, Walt Disney, Lycos and FindWhat. They claim being improperly charged for fraudulent clicks. The lead plaintiff is Lane's Gifts & Collectibles, and the case filed in Arkansas seeks to be certified as a class action.

Want to discuss? Join our forum thread: Click Fraud Suit Filed Against Search Engines.

Posted by Danny Sullivan at 7:39 AM | Permalink

April 1, 2005

American Blind Vs. Google Trademark Case To Go Forward

Google Takes Hit in U.S. Trademark Case from InternetNews.com notes that American Blind's case against Google over trademark infringement relating to paid ads is being allowed to go forward to trial. John Battelle has a copy of the ruling up here, for those interested in reading it. For some background, see also Search Engines Turning Trademark Law Upside Down and Trademark vs. Search: Do you Soo...gle?.

Posted by Danny Sullivan at 10:51 AM | Permalink

March 22, 2005

Is Cloaking Deceptive Advertising? Not Necessarily

Search Marketing Techniques, Deceptive Advertising Laws & Other Laws from Alan Perkins at Search Engine Guide looks at how laws about deceptive advertising might be applied to search marketing. Alan's long argued that cloaking could be considered deceptive advertising, and he tries to build that case here -- the deception being that the search engine itself was being deceived about the real relevancy of a page.

He cites the FTC action over a pagejacking scam in 1999 as one extreme example of deception being found in a legal instance. I agree with that (and my own write-up of that case is here, FTC Steps In To Stop Spamming). Alan does make clear that search spam itself is not necessarily the same as deception from a legal perspective. But he does conclude specifically that cloaking content with the intent of getting a better ranking is deceptive advertising:

So, those search engine spamming techniques that involve delivering the same content to searchers and search engines, such as hidden text or single pixel transparent links, do not constitute deceptive advertising. However, those techniques that involve delivering different content to searchers and search engines constitute deceptive advertising if the intent and result of the technique is a preferable placement.

I completely disagree. First, I don't know that getting organic listings in a search engine would be considered "advertising" under US laws, much less those of other countries. In addition, if what was promised in the search listing is generally the same as what someone gets when they arrive at the page, it's hard to argue consumer deception.

But the search engine itself was deceived! Maybe, but that doesn't mean laws about deceptive advertising were violated. And search engines get deceived about things all the time, including when they naturally fail to index pages properly or assign them a better ranking because the page themselves are not necessarily search engine friendly.

In fact, that's one reason that Google itself allows approved cloaking, as I've written before. Without allowing this, it can't properly index some content.

It's also why I find the entire argument over cloaking to be so tiresome to the point I may no longer even comment on articles about it in the future. Cloaking is not necessarily spam or misleading, as I wrote to great depth in my Ending The Debate Over Cloaking article of Feb. 2003.

If cloaking alone (independent of WHAT is being cloaked) were spam and misleading, then Google wouldn't allow it all all, in any circumstances, nor would Yahoo and others that accept XML feeds allow that form of cloaking. Cloaking is simply a method of feeding content to a search engine. How that content is described to a consumer and what ultimately is delivered when they arrive at a page after reading a listing is where you determine deception.

Did you promise "kids internet games" as with the 1999 pagejacking case and instead deliver up porn? That's deceptive, regardless of whether you cloaked, meta refreshed or whatever. Did you promise games and actually deliver them? Then how you gained the listing isn't likely deceptive from a legal point of view. Deception in getting the ranking will remain the sole jurisdiction of the search engine itself (and more about that in my past Spam Rules Require Effective Spam Police article)

Later, I'll be writing about new page-specific markup that Yahoo is proposing that were raised at the Indexing Summit we held at SES New York (for some fast details, see our Indexing Summit - SES NYC 05 forum thread with live coverage of that). This markup would allow portions of a page seen by humans to be ignored by spiders -- effectively, a form a cloaking.

There are good reasons for doing it, but if the change comes, it's going to once again move forward the definition of cloaking. More important, it's going to further move forward the fact that search engines are no longer (and haven't for some time) only comparing pages to each other that have been spidered exactly as seen by humans. They aren't, nor should they, and nor would doing so somehow restore some type of "level playing field" that never existed in the first place.

Want to discuss? Please join our forum thread, Deceptive Advertising in Search Results.

Posted by Danny Sullivan at 7:20 AM | Permalink

February 25, 2005

SEM Business Issues On Discussion

Here's a pair of Search Engine Watch Forum threads dealing with some tricky SEM business issues. In How To Start & When You Can Charge For SEO, members discuss how to get started with SEO/SEM services. What level should you be at in order to confidently charge clients. Meanwhile, Sued for Blackhat SEO? looks at whether "black hat" SEO or really any SEO activity that backfires to a client's expectations could get you into legal hot water.

Posted by Danny Sullivan at 12:03 PM | Permalink

December 1, 2004

Overture Settles With Geico Over Trademark Case

While Geico and Google are still heading to court, as blogged yesterday, MediaPost reports that Geico and Overture have reached a settlement: Overture Settles Trademark Dispute With Geico. Big news! Settlement details are confidential, but the fact that Overture has decided to settle rather than battle for a legal victory might simply invite even more companies to go after it.

Posted by Danny Sullivan at 9:16 AM | Permalink

November 30, 2004

Google Denied Summary Judgment In Trademark Case

John Battelle reports that Google tried to get a summary judgment in the case involving Geico and ads linked to words that are also Geico's trademarks: Google Motion of Summary Judgment Denied in Geico Case. Which means? The case is still going to trial.

Posted by Danny Sullivan at 2:26 PM | Permalink

November 28, 2004

Foot Measurements and a Keyword Lawsuit?

In: Brannock files keyword lawsuit, you'll read about a keyword advertising lawsuit filed by Brannock Device Co (the device you use to measure your feet) against ABC Industries, a company that purchased the trademarked term, "Brannock Device."

According to the Central New York Business Journal, "In September, while searching the Web to ensure that the Brannock trademark wasn't being used improperly, company officials discovered that Google had apparently sold the 'Brannock Device' keyword to ABC...Since Brannock filed the suit, ABC no longer appears when Google users type in the Brannock name."

Hat tip to JB at Searchblog.

Posted by Gary Price at 7:54 AM | Permalink

September 29, 2004

Google News In Beta To Avoid Ad Lawsuits?

Nice article spotted via Dave Winer, Google News: Beta Not Make Money from Wired. The article theorizes that Google has kept the "beta" moniker on Google News for so long because it's afraid that removing it -- and adding ads -- would cause it to be subject to copyright lawsuits.

Maybe. But the same argument about lifting headlines and lead paragraphs is already applicable to the long-standing Google web search service. No one I know of has seriously sued Google over that.

The reason, of course, is that people want to be listed in Google's web search -- to the degree that they get upset over lost business if there's any major algorithm change, as happened big time last December (see my What Happened To My Site On Google? article).

Given that Google News drives traffic to many publisher web sites (some of which like the New York Times earn off Google's contextual ads program), biting the traffic hand that feeds them seems unlikely to me.

In fact, the New York Times makes another good example, given that the publisher has specifically worked with Google to be accessible in Google News despite its password-protection on some stories.

Still, the two key points remain. Isn't well past time for Google News to come out of beta and when will ads finally appear? I'll let you know what I hear.

By the way, I see hardly any ads at Yahoo News -- a banner here and there and no sponsored listings that I can find. In addition, a keyword search at Yahoo News such as for movies or world series doesn't bring up any sponsored listings, in contrast to the case with regular web searching.

It suggests that if Google has some reason not to monetize Google News, the same reasons may also be happening with Yahoo News -- which in terms of keyword-driven searches, is as automated as Google. For more on that, see: Postscript On Google News & Bias.

Posted by Danny Sullivan at 7:33 AM | Permalink | Comments (0)

September 22, 2004

Google To Expand Ad Policies

Today's SearchDay, Google Ad Policies To Be Expanded Publicly, is an article by me looking at how Google is finally going to explain what ads it will -- and will not -- accept.

Google has come under a ton of criticism from many different quarters for its lack of transparency about this. People selling particular products, such as guns, might not find out these aren't allowed for sale via Google ads only after they've created accounts, selected keywords and submitted ad copy.

Arguably more controversial has been Google's internal "anti-anti" policy, where ads that were anti-anything might get rejected. That policy has now changed, and it supposed to be better explained to the public in the coming weeks.

Posted by Danny Sullivan at 6:28 AM | Permalink | Comments (0)

September 21, 2004

German Court Says No To Lawsuit Against Google

German Court Nixes Lawsuit Against Google Source: AP

Metaspinners case against Google Deutschland alleging trademark infringement was thrown out by a German state court today.

The lawsuit was filed in May 2004.

About 10 days ago another Adwords/trademark lawsuit was filed in the U.S. We mave full text of the court filing available.

Posted by Gary Price at 8:49 AM | Permalink | Comments (0)

September 14, 2004

Google News Hong Kong Causes Copyright Concerns

Looks like some Hong Kong news organizations are not happy with Google News, alleging that the use of story summaries and news photos may infringe copyright. More details from Asia Pacific Media Network: Google news site hit by legal row over copyright.

Posted by Gary Price at 5:08 AM | Permalink | Comments (0)

September 1, 2004

Fighting Copyright Theft Via Search Engines

Someone using your web page without permission? Some succinct steps you can take to at least get them out of search engines: How to Handle Copyright Infringement Found by the Search Engines.

Posted by Danny Sullivan at 4:35 PM | Permalink | Comments (0)

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Varick Media Management New York, United States

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Varick Media Management New York, United States

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