Over at Ars, I’ve got a write-up of Rescuecom, an important trademark case that was heard by the Second Circuit last week. I shamelessly ripped off James Grimmelmann’s excellent first-hand write-up of the exchange:
Trademark law is designed to protect consumers by preventing companies from selling their products under false pretenses. The core issue of the Rescuecom case is whether choosing a competitor’s trademark as an advertising keyword is likely to confuse consumers. Rescuecom has argued that Google profits from consumer confusion by obscuring the distinction between organic search results and paid advertising. Google, in contrast, compares its advertisements to a grocery store that stocks a generic product on a shelf alongside its brand-name competitor—a use that courts have consistently upheld as legal.
Last week, the case was heard by a three-judge panel of the Second Circuit. Law professor James Grimmelmann was there, and he gives a thorough summary of the exchange. The argument focused heavily on dueling analogies. Google’s lawyers invoked the grocery-store-shelf analogy and suggested that the situation was akin to handing out flyers in front of a competing restaurant.
Rescuecom’s lawyer countered that there was no concept of “next to” on the Internet. He argued that a consumer entering “Rescuecom” into Google’s search box was expecting to be taken to Rescuecom-owned sites, not to those of Rescuecom’s competitors or critics. He preferred to analogize Google’s actions to a scenario in which a listener calls directory assistance and is read a paid advertisement for a competitor. A judge also brought up a scenario in which a customer asks a druggist for Advil and is given Aleve instead.
My favorite analogy, though, comes from this comment in the Ars forums:
IIRC there was a case like this regarding Pepsi and Coke, where one of them was going around threatening restaurants who provided the competitor’s product when the customer asked for their product. Except that the recommended alternative was for the restaurant to instead tell the patron, “we haven’t got Coke, how about Pepsi instead?” Which seems to be much closer to what Google is doing. When you type in rescuecom and hit “I’m feeling lucky” then you get rescuecom.com, not rescuecomcompetitor.com or any other advertisers. When you hit search, you get a long list of results like you’re supposed to. Some of them are competitors and critics as well they should be.
I don’t know what case this might be referring to, but it’s an excellent example for Google’s argument. Not only is this exactly the “ask for Advil, get Aleve” scenario, but there’s no question that both Pepsi and the restaurant are profiting from it. And I’m reasonably certain that this is not regarded as trademark infringement. So if Google does the automated equivalent—search for Rescuecom, get an ad for Geek Squad—I don’t see why that would be different.
I have generally agreed with Clay Shirky (and Tim) that micropayments either don’t work very well or just aren’t needed given other pricing options / business models. But my eBay activity over the past few years has made me reconsider. I was going back through some of my past eBay purchases tonight and leaving feedback and I realized that I have made dozens of micropayments in recent months for all sorts of nonsense (stickers, posters, small car parts, Legos for my kids, magazines, and much more). Most of these items are just a few bucks, and many don’t even break the 99-cent threshold. I think that qualifies as micropayment material. And certainly I am not the only one engaged in such micro-transactions because there are countless items on eBay for a couple of bucks or less.
Of course, just because micropayments and PayPal work marvelously in the context of the used junk and trinkets we find on eBay, that does not necessarily mean they will work as effectively for many forms of media content. Advertising or flat user fees are probably still preferable since consumers don’t like the hassles associated with micropayments. Still, they seem to be working fine on eBay, so it would be wrong to claim that they never work online.
Just when you think Google’s thought of everything, they come out with something new. The latest, announced today, is “Google Custom TIme.” The new g-mail feature, according to Google, will allow users to send pre-dated e-mails. Even better, the e-mails will show up in recipient”s inboxes as having been received — and even read — on the earlier date.
The service promises to be endlessly useful for the deadline-challenged among us. No more being late for deadlines, no more late birthday greetings. And the possibilities for reduced tension at tax time are intriguing.
According to one user who’s tried the system: “I used to be an honest person; but now I don’t have to be. It’s just so much easier this way. I’ve gained a lot of productivity by not having to think about doing the ‘right’ thing.”
The engineering challenges were daunting for even Google’s engineers, but using what they call an “e-flux capacitor,” they managed to resolve even grandfather paradox problems.
The announcement was crucially made on the first day of April, although it could have been dated virtually anytime.
[Note: You might want to first read my review of Jonathan Zittrain’s book to give this essay some context.]
Jonathan Zittrain must have been smiling as he read Leander Kahney’s excellent Wired cover story this month, “How Apple Got Everything Right By Doing Everything Wrong.” In a sense, the article vindicates Zittrain’s thesis in The Future of the Internet–And How to Stop It.
Again, in his provocative book, Zittrain argues that, for a variety of reasons, the glorious days of the generative, open Internet and general-purpose PCs are supposedly giving way to closed networks and a world of what he contemptuously calls “sterile, tethered devices.” And Apple products such as the iPhone, the iPod, and iTunes serve as prime examples of the troubling world that await us. And Kahney’s article confirms that Apple is every bit as closed and insular as Zittrain suggests. Kahney nicely contrasts Apple with Google, a company that “embraces openness,” trusts “the wisdom of crowds,” and has its famous “Don’t be evil” philosophy:
It’s ironic, then, that one of the Valley’s most successful companies ignored all of these tenets. Google and Apple may have a friendly relationship — Google CEO Eric Schmidt sits on Apple’s board, after all — but by Google’s definition, Apple is irredeemably evil, behaving more like an old-fashioned industrial titan than a different-thinking business of the future. Apple operates with a level of secrecy that makes Thomas Pynchon look like Paris Hilton. It locks consumers into a proprietary ecosystem. And as for treating employees like gods? Yeah, Apple doesn’t do that either.
Continue reading →
I found this aside from Dean Baker interesting:
I have had a policy of never commenting on news stories that mention me or CEPR to avoid the obvious problem of a conflict of interest on this blog. I complain to reporters directly if I think they misrepresented my comments.
Can somebody explain what the conflict of interest would be? I’m sure I don’t get anywhere near as much press as Baker does, but it’s never occurred to me that I shouldn’t link to and comment on the press I do get. Have I been committing some kind of policy analyst faux pas all this time?
I’m heading off to the Tech Policy Summit shortly. It’s taking place from Wed-Friday out in LA. Very impressive agenda of speakers and topics, ranging from privacy law, copyright policy, child safety, broadband and spectrum issues, and international competitiveness. I am speaking on a panel on day 2 of the event, but I might try to do some live blogging out there if I have the time.
I’ve been meaning to plug this here for a while and this week seems like the perfect time. Cord Blomquist and I have been producing a podcast called In Conversation that might be up your alley. We bill it as a weekly show for nerds and while it’s not focused on tech policy, we talk a lot of tech and other related geekery.
In this week’s episode we’re joined by another TLF contributor, Tim Lee, and we discuss the sneaky Safari update for Windows, whether the stimulus payment is a welfare check, Twitter and other low-intensity and low-cost web technologies, Cord’s mystery conference, FriendFeed vs. Facebook and open vs. closed, the viability of Mahalo.com, Clay Shirky’s new book Here Comes Everybody, distributed campaign phone banks (really amazing), and hipster hating.
I hope you’ll give it a listen, and if you like it you can subscribe in iTunes or via RSS.
Jerry and Cord are weirdly bashful about tooting their own horns, but I’ve got no such reservations. I was honored to be the first-ever guest on Jerry Brito and Cord Blomquist’s critically-acclaimed In Conversation podcast. Check it out.
This fall, I will almost certainly be going to grad school in computer science. My options are Rice (where I’d be working with Dan Wallach), Princeton (with Ed Felten), and CMU (with Jim Herbsleb). Felten and Wallach both do research on computer security, with an emphasis on e-voting. Herbsleb studies open source software from a software engineering and economics perspective. I’ve now had a chance to talk to all three of them, and all three of them sound like they’d be great fun to work with. All three of them are interested in the kind of interdisciplinary CS/public policy research I’m hoping to do, although Princeton’s IT Policy Center probably gives it an edge in that respect.
I’ve got a few more weeks to make my decision. If you’ve got first-hand experience with any of these CS programs and would be willing to share your thoughts, I’d love to hear from you: leex1008 (at) umn.edu.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.