http://news.cnet.com/8301-13739_3-10122713-46.html

Posted by Chris Soghoian

Should members of the public be able to pay for Web advertisements detailing which companies have donated to politicians? While this seems like a great way to promote transparency in politics, Google forbids the practice–we are free to name the politicians who take money but cannot name the companies that give it.

With Google’s domination of the search engine market, and the eyeballs that go along with it, the company’s AdWords text ads have become a key way for activists, politicians, and corporations to reach the general public. However, over the past year, Google’s excessively restrictive policies have resulted in the censorship of lawful advertisements that educated and informed the public.

In one the cases involving religious groups placing anti-abortion ads, Google backed down. As this post will explore, Google’s rather absurd, and little known, trademark policy seriously harms the ability of citizens to highlight the donations made to politicians by large corporations.

Trademarks and AdWords
Over the past few years, Google has waged numerous legal battles in order to allow its advertising customers to purchase keyword ads for trademarked phrases. Thus, for example, Nike can make sure that ads for its shoes show up when a Web surfer searches Google.com for Reebok.

Under Google’s current trademark policy, Nike can purchase advertisements that will display information for the company’s own shoes, such as “Visit Nike.com to get great deals on shoes,” but Google forbids anyone but a trademark owner from using a trademarked phrase in an ad. Thus an ad stating that “Nike shoes are worn by Barack Obama, not Reebok” would be forbidden, even if Nike could prove it were true.

This example with two large corporations battling it out doesn’t really tug the heart strings. But what about the following few examples of ads, all of which are currently forbidden as per Google’s trademark policy?

* A labor rights group that wished to place an ad stating that “Wal-Mart forbids its employees from unionizing,” whenever someone searched for the phrase “minimum wage.”
* A public-interest group that wished to place an ad stating that “The RIAA has filed over 30,000 lawsuits against Internet users, many of whom were children, elderly, or even dead,” whenever a Google user searched for the words “file sharing.”
* An activist who wished to place an advertisement stating that “AT&T has given $7,500 since 2004. Who else has donated to the senator?” The ad would be displayed when Internet users searched for the name of a particular politician.

While these first two examples are hypothetical, the final one has actually been censored by Google. I know, because a few weeks ago, Google informed me that an ad campaign that I had run for the last 5 months was being terminated due to a trademark complaint by AT&T.

No sunshine allowed
As regular readers of this blog will know, I dabbled in a bit of tech policy activism in the state of Indiana earlier this year, working on a data breach bill that eventually became law. During the process of getting that bill through committee, I had a nasty run-in with a state senator who didn’t take too kindly to my blogging and was willing to hold up my bill as a way to force me to censor my criticism of his colleagues.

Once I left Indiana in May, I promptly registered multiple domain names for Republican State Senate whip Brandt Hershman, www.Brandt-Hershman.com and www.BrandtHershman.com. Both domains point to a single Web page that lists every campaign donation that Sen. Hershman has received, from all corporations, for the history of his political career.

In addition to setting up this Web site, I also placed a Google ad campaign so that anyone searching for “brandt hershman”, “senator hershman,” or a few other similar keywords would see an advertisement pointing to my site:

What does money buy?

AT&T has given $7,500 since 2004.
Who else has donated to the senator?
www.Brandt-Hershman.com

From June until December of this year, the ad ran without any complaints. However, on December 5, Google notified me that it had suspended my advertisement, based on a trademark complaint:

Thank you for advertising with Google AdWords. After reviewing your account, we’ve found that one or more of your ads or keywords does not meet our guidelines.

Ad Issue(s): Trademark in Ad Content

SUGGESTIONS:
-> Ad Content: Please remove the following trademark from your ad: AT&T.

When I appealed the suspension of the ad, Google replied with a bit more information, informing me that AT&T had complained about my use of the company’s trademark:

Thank you for your email. I understand you’re concerned that the term(s) AT&T has been disapproved in your account as a trademark.

Please note that we received a complaint from the trademark owner of AT&T. In their complaint, the trademark owner stated that they are the owner of the mark and that its use in certain advertisements is not authorized. Therefore, your ad was disapproved.

Google’s policies, in depth
Google’s official policy confirms its zero-tolerance stance toward trademarks in advertisements:

When we receive a complaint from a trademark owner, we only investigate the use of the trademark in ad text. If the advertiser is using the trademark in ad text, we will require the advertiser to remove the trademark and prevent them from using it in ad text in the future.

Google permits trademark owners to submit blanket complaints regarding the use of their mark in advertisements. This means that with just one request, a company can force the removal of every single advertisement that contains the trademark, even if the use is legitimate and lawful.

It’s useful to compare Google’s trademark and copyright policies. If a copyright owner (say, the Church Of Scientology or Viacom) wishes to force the removal of a link from the Google search index or videos from YouTube, that company must send an individual request for each file or Web site.

If Viacom wants to have 100 episodes of The Daily Show removed from YouTube, it takes 100 requests. However, if Viacom wants to force the takedown of 100 different advertisements that mention The Daily Show, it only takes a single request.

The requirement that copyright owners send individual takedown requests is an important speed bump that protects the fair-use rights of end users, who might be incorrectly accused of violating copyright. No such protection currently exists for Google AdWords customers who wish to lawfully comment on or critique companies whose names are trademarked.

Legal analysis
To make that I wasn’t making a fuss out of nothing, I spoke to a number of prominent legal experts, all of whom shared my concern regarding the impact on free speech and transparency in politics.

First, I spoke with Wendy Seltzer, a fellow at Harvard’s Berkman Center (disclosure: I am also a fellow at Berkman) and founder of the Chilling Effects Clearinghouse. She told me that:

Google should be concerned that its actions here may actually hurt its (and its users’) ability to use trademarks for comparative and search purposes later. Google is now a large enough part of our Internet experience that its concessions to trademark bullies in AdWords could condition readers to think–incorrectly–that all uses of a trademark must be authorized by the trademark holder…

We need to resist this chipping-away at our rights to use brands to speak about the products they promote and things their owners do, and Google, as a major beneficiary of our prodigious use of language, should help us to do so.

Jim Harper, director of information policy studies at the Cato Institute also shared similar concerns:

What (Google) seems to be doing is accepting any complaint as conclusive proof that a trademark violation is occurring. This is a very poor practice, and it grants trademark owners power well beyond their legal rights. On a platform as important as Google’s, that will result in a significant diminution of communication about corporations and, in this case, politicians too.

While he was concerned about the impact on free speech, Eric Goldman, a professor at the Santa Clara University School of Law, expressed some sympathy for Google, due to the risk of litigation by trademark owners:

Presumably, AT&T has requested Google not to let any advertisers display “AT&T” in the ad copy–whether the advertisers are competitors, pirates or political speakers. Google is within its legal rights to do so, and there is some legal support for Google’s position.

However, unquestionably, Google’s policy precludes legitimate trademark references such as yours.

This is not a good situation, but before we criticize Google too harshly, note that they face legal risks whatever they do, and they have tried to find a compromise solution…

Trademark law is so ridiculously expansive that Google feels compelled to implement illogical and chilling policies, so (in my opinion), the real villain is trademark law, not Google.

As both Goldman and Harper told me, Google is perfectly within its rights to refuse to display my advertisement, just as a newspaper or TV stations can refuse to air an ad. However, just as newspapers routinely publish advertisements that criticize companies, so, too, could Google, if it wished to.

The only recourse available to activists wishing to change Google’s policies is thus shame–a tactic that has worked pretty well in other similar situations.

Freedom of Speech and Abortion
Earlier this year, a British anti-abortion organization sued Google, after the search engine refused to display an advertisement that the group had sought. The text of the ad was:

U.K. Abortion law
Key views and news on abortion law from The Christian Institute
www.christian.org.uk

Before the lawsuit, Google’s policy did not permit the ads promoting Web sites that contained abortion and religion-related content. After a significant amount of bad press, and the settlement of the suit (brought under the United Kingdom’s Equality Act), Google reversed itself.

Google’s new policy allows religious associations to place ads “in a factual and campaigning way,” a Google spokesperson told the British media. She went on to describe the policy in more detail:

This means that their ads need to aim to educate and inform, not to shock. The ads can refer to government legislation, and existing law, and the alternatives to abortion. But, they cannot link to Web sites which show graphic images that aim to shock people into changing their minds.

Outside of the online-advertising space, U.S. telecommunications giant Verizon Communications caused a huge media firestorm in 2007, when it blocked short text message alerts by NARAL, a pro-choice group.

Within days of its anti-free-speech blunder, Verizon quickly backtracked. However, by then, the damage to its reputation was done. Both Congress and the FCC took an interest in the incident, leading to threats of oversight and investigation.

Obviously, abortion is a hot-potato issue that no Fortune 500 company wishes to get caught in the middle of. However, the issue for both Google and Verizon was the same–the companies sell products that enable people to communicate with each other. When they start deciding which kinds of information is appropriate to send, they risk a significant public outcry, as well as the attention of both regulators and Congress.

With any luck, Google will realize that its flawed AdWords trademark policy is hurting free speech and efforts to promote transparency in government. If it doesn’t, we all suffer.