Freedom to Tinker

Ernest Miller points to a draft treaty being considered by the World Intellectual Property Organization. It’s a truly remarkable document. And I don’t mean that in a good way.

Here’s the most amazing part, from Article 16, Alternative V:

2. In particular, effective legal remedies shall be provided against those who:
…
(iii) participate in the manufacture, importation, sale, or any other act that makes available a device or system capable of decrypting or helping to decrypt an encrypted program-carrying signal.

Every computer is “capable of decrypting or helping to decrypt” such a signal, so this provision, if adopted, would apparently require signatories to the treaty to ban the importation, sale, or distribution of computers.

Note this this is just an “alternative” under consideration. It was proposed by Argentina, and Switzerland proposed language that “roughly corresponds” to it. I don’t know whether the U.S. has taken a position on this, but I assume the U.S. is still in favor of computers being legal.

Dana Blankenhorn at Moore’s Lore has some interesting discussion of the lawsuit between American Blinds and Google.

Here’s the background: When you do a Google search, the results page gives the search results on the left side of the page, and a few ads (marked as such) on the right edge of the page. The ads are chosen based on the words in your search; advertisers buy placement for particular search words. For example, a pizza restaurant in Princeton might buy placement on searches for “princeton pizza”.

American Blinds makes window blinds. If you search for “American Blinds” on Google, you will see (or at least, you would have seen before the lawsuit) ads for some of American Blinds’ competitors. American Blinds claims that this is a trademark violation, since Google is associating competing products with the trademarked name “American Blinds”. American Blinds says that Google may not sell competing ads keyed to the trademarked name, without the trademark owner’s permission.

Most people’s initial reaction is that American Blinds’ lawsuit is ridiculous and should stand no chance of succeeding. But Google already lost a similar lawsuit in France, and it already lets Dell do what American Blinds wants to do.

To give every trademark holder veto power over the placement of clearly marked ads on search pages seems like bad policy, whatever the law says. (If the ad-laden page were trying to mislead customers about who is connected to the trademark, I would feel differently; but that’s not the case here.) Creating so many vetoes would seriously cramp the ability of Google, or anybody else, to sell keyword-triggered ads, especially given how crowded the namespace has gotten.

Consider a hypothetical hungry traveler who searches for “princeton pizza,” wanting to survey his dinner options. If there’s a restaurant called “Princeton Pizza,” and it has a veto over ad placement on that phrase, the traveler will be frustrated. And it’s hard to see what other search the traveler could do to circumvent the trademark issue and get a list of pizza places in Princeton.

Perhaps Google could provide an “I mean the words I wrote, not the trademark” option, so that a search for “princeton pizza –notrademark” would display ads triggered by the words, ignoring any trademark vetoes. But it’s hard to believe that that would satisfy American Blinds or other trademark owners.

Another attempted solution is to say that a trademark owner should get a veto if the only reason consumers would search on the name is when looking for the trademarked item, but that there should be no veto if a consumer might plausibly search for the trademarked phrase for other reasons. That’s a useful distinction in theory, but such a test seems too tricky to apply in practice.

I can’t think of a good way to accomodate the trademark owners’ legitimate interests, without essentially shutting down word-based ad placement services. And in the absence of such a solution, it seems to me better to let the ad placements go on.