The Net Impact Roadmap

For years now The Net Impact has been working with clients on the slow and painful process of getting competitors and just plain “traffic trap” sites to stop using trademarked names and terms. In some cases webmasters have inserted competitors names and products right into the titles and descriptions of landing pages engineered to steer searchers to their site rather than the intended destination. E-mails, threatening letters and phone calls from unleashed attorneys can eventually have impact but that is all corrective action after the fact. In some cases the lost sales or even worse, the potential brand confusion that can occur during the misuse interim can be substantial.

This particular “Wild, Wild West” frontier of the web may be coming to a close. According to an April 8th post in Search Engine Watch by Frank Watson titled, Others’ Trademark Terms in Meta Tags Illegal: Georgia Court Rule, there finally may be some definitive standards being put into place. Frank does a great job of defining the issues in this particular case so there is no reason for me to repeat those. From a white hat perspective, all SEO firms have known that this practice was unethical if not defined yet as illegal. Still there were times when a site owner found their site in competition for their own brand with interlopers. This being a state court ruling of course means that we could be 49 decisions away from a standard. Trying to nail down web legalities to physical borders is at the basic level very messy as we have seen in a wide variety of issues including online sales tax, wine sales, privacy, spam and the ADA.

Also to be interpreted (or misinterpreted based upon your side of the courtroom) still are issues related to very generic trademarks. Frank Watson points to the term “Kleenex” in his blog. Eric Goldman in a July 5th post last year titled, Google Subpoenaed for Keyword Purchase Data–Rhino Sports v. Sport Court directly displays how the trademarked term as a common use term issue can become very litigation friendly and involve parties large and small. Google seems to frequently find itself embroiled at least in the headlines for this type of case. Sometimes maybe it’s not so good to be the king.

We will undoubtedly see additional rulings in this arena very shortly. In the meantime, The Net Impact aggressively searches the web through automated (such as Google alerts) and manual efforts looking out for our clients and of course our own growing brands. Like every other element affecting Internet marketing, this one will continue to require study and vigilance. The Wild, Wild West may be getting a little tamer.

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Remember that time I noted that provisions of the DMCA could be used to oppress and stifle innovative activity once protected under copyright law (that time yesterday…and the day before…and last week…and probably again tomorrow)? Well here we go again! After being verily crushed as plaintiff in a trademark infringement suit, Healthcare Advocates, Inc. brought its righteous anger to bear on the law firm that had represented on of the victorious defendants. Why the wrath? Turns out that law firm Harding, Earley, Follmer & Frailey had used the Internet Archive Wayback Machine to do a little sleuthing on former versions of the Healthcare Advocates website.

See the problem?

Neither do I.

Here’s what Healthcare Advocates and its bang up legal team saw: circumvention of a technological measure designed to control access to a Copyrighted work–a violation of DMCA Section 1201(a):

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

The gist of the argument is that Healthcare Advocates had in place on its website a robots.txt file instructing the Wayback Machine’s web crawlers not to archive the site (read: a technological measure designed to control access to a copyrighted work). Something got hosed and some of Healthcare Advocate’s pages were archived anyway–and visible to H,E,F & F. The argument, then, was that H,E,F & F’s use of the Wayback Machine to view archived pages was a circumvention of the access control ostensibly provided by the robots.txt file.

Hmmm…

Here’s my beef:

Simply put, the robots.txt instruction is not a “technological measure that effectively controls access to a work…” First, it was apparently not effective, given that a standard web crawl bypassed the measure–but that’s beside the point. Second, adherence to robots.txt instructions is not compulsory. Lots of robots out there don’t comply with robots.txt instructions and they are under no duty to do so. This is a technical measure that requests that another party voluntarily limit its access to a work. Third, it seems there was no circumvention. The Wayback Machine webcrawler employed no nefarious methods to unlock or break the protection supposedly provided by the robots.txt instruction — it just went in, sort of like one might enter a store or office or other physical facility of a company that was open for business.

Now, I’m not arguing that website owners don’t have the right to control access to their content - present, past, and future. I’m also not attacking anyone for developing novel legal theories. My issue is with the perils created by a statute that boots a longstanding, settled understanding of the rights of various parties under copyright out the window and encourages absurd results. Such an application of the anticircumvention provision would have a chilling effect on all Internet commerce, turning every Google search into a potentially criminal activity. To draw an analogy to pre-DMCA law, this would be akin to finding criminal copyright violation to result from someone entering a public library through the out door and reading a book. I didn’t sign up for that. Did you?

Fast forward to the dismissal of Healthcare Advocate’s complaint. For those DMCA fanboys out there who will cite this one as proof that the dangerous provisions of the DMCA will be applied sensibly, I say this: how might this have turned out if the defendant hadn’t been a law firm? What if this theory were used to bring suit against a party without the knowledge or resources to point out it’s ridiculous nature? The worry isn’t so much what happens when something like this goes before a judge — it’s what happens when this type of complaint is used as a tool for bullying and intimidation.

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