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Search and the Law: Professor Eric Goldman

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As part of a series looking at Internet and intellectual property law, Eric Goldman, assistant professor and director of the High Tech Law Institute at Santa Clara University, discusses self-service IP enforcement, current search engine lawsuits, and the future of search engine law.

Eric GoldmanGoldman has presented four times on legal panels at Search Engine Strategies conferences. The latest was in San Jose, "Copyrights and Trademarks – What Search Marketers Should Know."

Goldman previously was a professor at Marquette University Law School; before that, he practiced Internet law for 8 years in Silicon Valley. He teaches courses on Cyberspace Law and Intellectual Property, and his research focuses on Internet and marketing law topics such as search engines, spam and adware. He also writes about legal issues relevant to online marketers at his Technology & Marketing Law blog.

A special report on search legal issues from Search Engine Strategies in San Jose, CA August 20 – 23.

Most of the audience at the SES San Jose conference were looking at intellectual property (IP) issues from the plaintiff perspective. Do you find yourself naturally falling into the role of the defense attorney at the SES panels?

Some of it reflects my background. When I worked in-house at epinions.com, I got a lot of demands that I felt were just unfounded, and expensive for us as a company. So I became somewhat sympathetic to the viewpoint of the small business or startup business, that gets these ridiculous demands and just can't afford to spend money on all of them. I think a lot of my views are colored by that experience.

Is more balance and education needed for SEMs to understand others' rights for IP usage? And what has contributed to what you see as an imbalance?

A lot of people in the SEM community get socialized to think that they have valuable rights that are being exploited by other people. And that's because a lot of times, SEMs are working for big brand owners, or big copyright owners, so they get imbued with their client's perspective. That's one way there's a pressure towards focusing on rights-enforcement as opposed to some other considerations.

The other circumstance is that most of the attorneys who specialize in search marketing specialize in plaintiff-side work, because that's where they can generate cash from immediately. It's naturally a much quicker way, and potentially more lucrative way, of developing business for themselves.

I think you get the pressures both from the clients and attorneys, and so it creates, in my perspective, an unhealthy brew. I don't think it has to be that way.

How about the online resources and web tools available to SEMs – have they evolved to such a level that, in most cases marketers might not even need to consult with, or hire, an attorney?

I think it's gotten much easier for people to do self-service enforcement. But there is still some mystique to what an attorney can bring, and the gravitas to the words an attorney can articulate. So even though a lot of problems can be dealt with on a self-service basis, a lot of clients feel that it's not enough, that they need the big guns. They think there's value in investing in attorney services for whatever extra level of service they may get. I don't personally subscribe to that, in the extent that I've worked on the personal enforcement side. More than 90 percent of it can be taken care of through self-service techniques, and I encourage my clients to think of it that way.

Is there a difference in the need for professional services between registering a copyright and a trademark?

I think filing copyright applications is something that anyone can do. However, there still may be value to contextualize copyright registrations for a broader enforcement and asset development plan. (Consulting on a portfolio of assets.)

I have always advised clients to use a trademark attorney for trademark registration. The form itself is not that complicated; but it's typical that the interaction with a trademark office is more complicated than with a copyright office. It's also important for an attorney to interpret the results of a trademark search, which I strongly advise clients to do: get a trademark search done before they fall in love with or marry a trademark.

What are some of the bigger legal issues in the search industry, and where do you see them heading?

Search engine law has gotten pretty complicated in the last 5 years or so. We're seeing battles (i.e., lawsuits) with just about every technology that search engines are deploying.

Click fraud is an issue, but I'm surprised it's as big an issue as it seems to be, and I'm surprised that discussion hasn't moved on further.

I still think there's some legal development that's going to take place in the area of search algorithmic decisions. We had a few lawsuits in that last few years, and I think the search marketers are going to be gunning for ways to get the algorithmic decisions under court scrutiny, rather than solely under the decision of the search engines.

We're obviously seeing huge battles over keyword legitimacy, over the issue of trademarks in advertising. That battle is taking place in the courts and legislatures, and I don't see any reason why that battle is going to end anytime soon.

We've seen so many copyright lawsuits with respect to different products. We've seen it in the Google News context, with Google Book Search, with Google's caching function, and with their core indexing function. You name it, and there are copyright issues inherent in the system. We've seen some of these cases resolved definitively, with a very clear victory on the part of the search engines. But in the other cases, I don't think any of those battles are close to being over. And I'm not 100-percent certain that every single decision that the search engines make will be immune from liability.

What are your thoughts on the Viacom lawsuit with Google (over its own copyright infringed content appearing throughout YouTube), and Google now changing its past position of claiming no responsibility to now taking proactive measures to prevent the uploading of copyrighted video content, at least for the large companies?

I think Google has taken a fairly philosophical view toward its operations, rooted in the view that technology is the ultimate savior to any problem. I think we've seen them step back from that in some critical ways. There was some good discussion in the summer earlier about how Google's core algorithm is actually subject to human intervention. I think that's a critical admission on the part of Google; that not everything is just some servers and software, and everything else is hands-off. I think they've acknowledged that they have to have human intervention in many of their basic operations. Over time we should see Google further embrace that, and have more and more custom human interventions into their databases.

With respect to the Viacom lawsuit, I had predicted that the case would settle, and I'm surprised it hasn't settled yet. This is not the case that either party wants to go to war over. There should be a way to strike a deal that will make both parties happy, and the economics should support that rather than battling it to the death in court. I remain dubious that it will receive a court opinion that will give a clear victory to either side.

Because of such wide online proliferation of "benign infringement" of intellectual property in user-generated content (UGC) sites, do you think businesses will become inclined to have a more flexible stance on going after benign users?

I haven't seen that in practice, but I would like that to be the case. I would like there to be a growing understanding [for businesses” that not every use is impermissible. What I've actually seen is intellectual property (IP) owners become even more intransigent, more irrational, about the scope of their rights and the impermissibility of other people's "benign infringement." The data sets I've seen on this are not good, and there's no sign yet of any real cultural or educational evolution that will get people to realize the illogic of those positions.

Grant Crowell is the CEO and creative director for Grantastic Designs, and a contributor to Search Engine Watch's Vertical Search column, focusing on video search topics. Grant also serves as a video production and optimization consultant, and produces documentary video content for Walking Eagle Productions.

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