Google and political campaign consulting

I was introduced today to Google’s Election and Issue Advocacy Team, a service designed to maximize the effectiveness of political advertising campaigns. Scott Brown’s successful Senate campaign made use of this service and paid Google’s AdWords program to ensure that Brown’s web page was the first sponsored link for any search on “Martha Coakley.”

According to what little I’ve read about this, Google offers this service to all comers. It’s a strategy that’s no doubt good for business, but one that I find disconcerting. First, Google holds itself out as a neutral purveyor of information. Should we still trust Google for its search results when it is taking money from political campaigns? Google would surely claim that its search engine is sacrosanct, and nothing would ever change other than sponsored advertising. Perhaps that’s true, but sooner or later Google will be asked otherwise tempted to tweak something in favor of a big, profitable client. Sure, that temptation might mean helping Ford over Toyota, and not Democrats over Republicans. But the very prospect of this infusing politics has, at the least, changed my opinion of Google for the worse.

Second, even if Google’s basic search results remain trustworthy, there’s the possibility that Google will now become a self-interested power broker in politics. Lawyer’s can’t represent conflicting interests because it compromises a lawyer’s independent judgment and increases the risk that confidential information will be either disclosed or used against a client. Doesn’t Google run into the same problem? Sure, Google says that it assigns different teams to clients on opposing sides of a campaign, but that is no different than the weak “Chinese wall” justification given by big law firms who want to play both sides of the street. People on “opposing” teams could easily talk about things over lunch, inadvertently disclosing information. And eventually, all teams report to someone who knows what is going on in both campaigns. That person at the top will wield considerable power. Might he or she be tempted to tip something in one direction in exchange for political favors in Google’s interest later on?

Third, Google has a lot of personal information about its account holders. Might Google not someday use that information to target ads about health care to people whose emails contain the words “health insurance” or “sick”?

Maybe this is a tempest in a pot of tea, and Google isn’t doing anything different than any other corporation or lobbyist trying to make money or gain political favor. Still, I can’t help but think that Google wields extraordinary influence over what people read and how easily they find things they want to read. Google already has financial incentives to warp what I read about its advertisers, but I guess I’m not that worried about the differences between mortgage companies or auto makers. I worry a lot more, however, when Google has incentives to influence what I read and think about those who hold elected office.

Don’t Even Think About It: Negative Ad Words and Trademark Injunctions

A U.S. District Judge has enjoined a defendant from using a term for its business. That is not an unusual result. The one part of the order that may be of note is that the defendant is not allowed to purchase ad words using the plaintiff’s mark and the defendant must use negative adwords as well on search engines. Here is the pertinent language:

[Defendant is enjoined and restrained] from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.

So here the mark is Orion. The defendant has been found to have infringed. The normal range of prohibited future activities is in place. But in addition, the defendant must take steps to prevent its appearance on a search engine results page when someone is looking for the plaintiff’s services. The court explains:

For purposes of this court order, a “negative keyword” or “negative adword” shall mean a
special kind of advertiser keyword matching option that allows an advertiser to prevent its advertisement from appearing when the specific terms are a part of a given user’s internet search or search string. It does not infer that the Defendant may use the specified negative keywords or adwords for any other purpose.

Now it seems the defendant was rather blatantly trying to use the plaintiffs mark (counsel appeared but an answer was not filed). Yet, if the plaintiff’s mark and business match the litany of strength that the court offers (‘ranked fourth in the nation among community bank holding companies and thrifts for outstanding performance,” “In June of 2006, Plaintiff was ranked as Florida’s Top Performing Community Bank for the second consecutive year, and was also ranked among the nation’s top performing bank holding companies,” “In June of this year, American Bankers Association’s (ABA) Banking Journal, ranked Orion Bancorp, Inc., fifth in the nation for outstanding financial performance”), wouldn’t a competitor want to be able to appear when someone searched for the premiere bank of the region? Shouldn’t that be allowed?

Given the facts of this case, the defendant may have behaved so badly that such an option is not merited. Still as a general matter, one might infringe but still be allowed to compete. Requiring active steps so that one’s business does not appear in a search result goes a bit far. In a world of virtual shopping, attention is a key lever in building business. Many of the facts of this case point to infringement. But the negative adword limitation essentially stops someone from competing online. The concern is that the smaller player will barely be able, if at all, to get in someone’s face and say yes the larger company exists but so do we.

As larger matter, the Dinwoodie/Janis Dogan/Lemley use debate may inform this issue. Still, if I remember correctly, Dinwoodie and Janis think comparative advertising is a good thing but that use is not the way to protect it. Rather they offer that better injunctions will address the contextual issues. Rebecca Tushnet’s Gone in 60 Milliseconds: Trademark Law and Cognitive Science also merits a read as it questions harms based on association which seems to be part of the negative adwords solution here.

cross-posted at Concurring Opinions

Real Online Competition: The Right to Exit

There has been a lot of news coverage of Google’s “openness initiatives” over the past few weeks. The “Open Handset Alliance” promises to break the carriers’ appliancization of cell phones. OpenSocial is designed to put its imprint on social-networking generally, while allowing mass participation in creating apps for it:

OpenSocial[] is an appeal to software developers and Web sites to cooperate in adopting a single set of software standards for the little software widgets that can add a social-networking layer to all Web sites. Agreement on a standard would save users from the aggravation of joining multiple networks and save developers from the aggravation of writing code that works only with specific sites. Unlike Facebook’s programming requirements, Google’s use nonproprietary programming languages.

Both these initiatives are great. But somebody has to keep asking the question: what’s in it for Google? Fake Steve Jobs suggests one answer:

[D]espite their big brains and IQ tests, they [got] totally blindsided by Facebook and have to gin up this ridiculous OpenSocial thing. Just like with this phone thing, they round up all the losers in that social networking space to form some . . . alliance. You know how it looks? It looks weak. Companies don’t form alliances and consortia when they’re winning. Also, whenever you see companies start talking about being “open,” it means they’re getting their ass kicked. You think Google will be forming an OpenSearch alliance any time soon, to help also-rans in search get a share of the spoils? Me neither.

Which led me to think–what would an open search alliance look like? Well, the more Google knows about users, the more targeted their ads and services will become. That self-reinforcing advantage helps them on both sides of a two-sided market; they offer advertisers richer data on potential customers, and target ads better to users.

If those advantages tend to lock advertisers and consumers in to using already favored search engines, perhaps an Open Search Alliance would make search data portable–just as an open social networking standard would let you download your profile and social graph into some portable file. As personalized search tailors services to users, your past queries provide a treasure trove of data that can be used to tweak responses to future searches. The basic question is: who ought to control the data that users and search engines mutually generate? All your queries have been training Google to give you what you want–shouldn’t you be able to use that data to your advantage if you switch search engines?

I can just imagine the howls of protest–“Lock-in is the whole Web 2.0 business model! Give ’em stuff for free, use their UGC, and monetize the eyeballs!” But my hope is that (user sunk costs + lock-in) becomes a much less compelling business model over the coming decade. Although optimism on “innovation markets” has largely anesthetized antitrust authorities looking at these situations, we should reconsider whether encouraging big players to compete to capture a market produces more gains and innovation than rules that reduce the cost of exit from dominant players.

If we don’t see those type of rules, just remember that every bit of time you invest in Facebook apps, Google searches, etc. is one more step toward locking yourself in. Expect much noisier ads and much more invasive privacy practices as the companies grow in strength and recognize how difficult it would be for you to quit. And don’t expect that, when you finally reach a breaking point and want to quit, all 100 or so of your friends will follow you over to another social network–or that the new seach engine you choose provides services remotely as good as a Google you’ve trained as well as a voice-recognition program to recognize your idiosyncratic preferences and tastes.