[NYCInfoLaw] CSLST Reading Group, January 20th

[john nicolaou]

*Truth in Advertising and Search on the Internet*

Columbia Society for Law, Science, and Technology Reading Group



Columbia Law School

435 W. 116th Street

Jerome Green Hall, Room 502

January 20th from 7-9 PM



Like ISPs, search engines play a crucial role in providing consumers with
access to web content, and in providing e-businesses with access to
consumers. It is curious then that few net neutrality advocates have
broached the topic of search engine responsibility. If you’ve ever wondered
what goes into the results of a Google search, or why search results might
matter more generally, this week’s CSLST reading group is for you. This
week’s readings propose a variety of legal theories of harm caused by search
results. For those of us with precious little time, I’ve summarized the
articles below. “Google’s Law” and “Rankings, Reductionism, and
Responsibility” will receive the most attention during discussion. Any other
articles are for those interested in extra reading. Also, for those students
that need a little extra motivation, there will be free food! We only ask
that you please give Kate notice at kate.vershov at gmail.com, so we can have
an idea of how much non-pizza to buy. But even if you forget to RSVP, please
don’t hesitate to attend. The more the merrier!





“Google’s Law” by Greg Lastowka can be found here,
http://works.bepress.com/lastowka/, and is also attached below. Generally,
it focuses on attempts by website owners to challenge Google’s search
results, through such varied claims as trademark infringement, libel, false
advertising, and tortious interference with contractual relations. According
to Lastowka, trademark has emerged as the only viable vehicle for challenge,
but those challenges seem to be limited to paid search results and technical
uses of trademarks in commerce. Unpaid search results receive scant
attention. It’s worth noting that some of the holdings mentioned have since
been vacated. For example, *see Rescuecom Corp. v. Google Inc., *562 F. 3d
123 (2d Cir 2009).





“Rankings, Reductionism, and Responsibility” by Frank Pasquale can be found
here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=888327, and is
attached below. Pasquale questions the current trend of protecting Google’s
unpaid search results under the first amendment, and argues, through an
analogy to forms of redress for erroneous credit reports, that those harmed
by search results have rights to demand an explanation and to supplement
search results. For those interested in further pursuing the topic, Pasquale
also analogizes calls for search engine responsibility to calls for net
neutrality in “Internet Non-Discrimination Principles.”
http://preprodpapers.ssrn.com/sol3/papers.cfm?abstract_id=1134159&rec=1&srcabs=1119982.






The debate over search engine responsibility closely parallels the debates
surrounding current attempts by consumer groups to impose stricter
disclosure principles for stealth marketers, both on and off the net. Said
groups have been lobbying the FCC for the past two years to address the rise
in product placement, a.k.a. “embedded advertising.” Currently, the only
type of required disclosure for product placement generally takes place in
the credits and goes completely unnoticed. The FCC has been “considering”
and “discussing” the possibility of increased regulations since 2008, with
the last update in September of 2009. *See
http://www.thewrap.com/article/consumer-groups-fcc-fix-product-placement_7718
*. The industry consensus is that the increasing fragmentation in modes of
content delivery and the rise of DVR technology have devalued the
traditional thirty second commercial, and that advertisers are turning
toward product placement as a way of reaching audiences, regardless of how
they watch content. Also related is the push in the FTC to regulate paid
online reviews, a.k.a. “blogola.” The attached word document provides some
articles in the press on both topics, for those interested. For a more
general (and lengthy) discussion of stealth marketing, see Ellen Goodman’s
“Stealth Marketing and Editorial Integrity” at
http://www.texaslrev.com/issues/vol/85/issue/1/goodman.


Sincerely,

John Nicolaou
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