Discourse.net

From the Archive of Half-Baked Ideas

I appear to have about 200 partly -written posts I’ve written over the years but never published. The oldest, dated 2003.10.16, has the headline “Karl Auerbach Thinks the Internet is In Danger” but all it says is,

CaveBear Blog: SCO and Verisign, the Techno Bobbsey Twins?

The second oldest, from 2003.10.18 says,

I’ve added a graphic that illustrates the current “Threat Level” as based on information uploaded from the Dept. of Homeland Security every two hours. Of course, the whole concept of an official “Threat Level” (whether color-coded or not) is easily one of the dumbest ideas ever to come out of any White House.

One of the goals of a terror campaign is to get the target to waste resources doing silly things. I would like to hear the argument that we have not fallen into that trap.

The graphic didn’t last long here - it bothered people as they saw it as an endorsement of the insanity. Now I’d like to hear President Obama or Secty. Napolitano saying they’ve killed the whole stupid thing.

Unhappy Troops

Another false thing Fred Barnes said the other day was that our troops in Iraq are really happy to be there. The audience found that not credible (“read the letters to Stars and Stripes” I shouted, but couldn’t be heard over the other incredulous reactions). Now that low morale is on the front page of the Washington Post, maybe he’ll retire that talking point? See Many Troops Dissatisfied, Iraq Poll Finds: “A broad survey of U.S. troops in Iraq by a Pentagon-funded newspaper found that half of those questioned described their unit’s morale as low and their training as insufficient, and said they do not plan to reenlist.”

Clinton left Bush a great Army, and Bush is destroying it.

French Court Says Google's Sponsored Links (Adwords) Can Be a Trademark Problem

Monday a French court, the Tribunal de Grande Instance de Nanterre, 2ème chambre ruled in Sté Viaticum et Sté Luteciel c/ Sté Google France that Google France violated the trademark rights of a complainant when it displayed a competitor’s sponsored links (via its Adword program) in response to a search for the plaintiff’s trademark. The decision is subject to appeal.

Google’s Adword Trademark policy offers limited review; it’s mostly ‘let’s you and him fight’.

There is one US case that I know of which discusses the issue in the context of serving banner ads, Playboy Enterprises, Inc. v. Netscape Communications Corp., 55 F.Supp.2d 1070 (C.D.Cal., 1999), but it’s only a district court, and fairly fact-specific. The court just wasn’t persuaded that the use of the terms “playboy” and “playmate”—which it thought generic—was infringement. Even if they weren’t generic, it said the banner ads were not infringing or dilution since they clearly advertised something other than the plaintiff’s magazine or in any way interfered with the association between the plaintiff’s mark and the product. (There may be more cases (there certainly are on meta-tags!), I haven’t done a search on this recently.)

The very reliable Trademark Blog has in the past suggested that the US law in this surprisingly complex area is unstable, which seems fair enough as a descriptive matter. But I hope the French rule isn’t adopted here.

The most recent article I know of on the subject of keyword advertising, Gregory Shea, Trademarks and Keyword Banner Advertising, 75 S. Cal. L. Rev. 529 (2002), doesn’t seem to be online. It begins by suggesting the practice is bad,

With the rapidly expanding use of the Internet, new methods are being developed to infringe the vital asset of commercial goodwill: the trademark. As companies vigorously compete for consumer attention and money, they have discovered new techniques to exploit their competitors’ goodwill to attract new consumers to their websites and products. Balanced against this manipulative behavior is the fact that the Internet has offered consumers new choices like never before. Consumers can quickly get information about new products, compare prices, and make purchases faster than ever.
One of the new techniques to reach consumers on the Internet is the use of trademarks as keywords to trigger competitor advertising when the trademark is entered as a search term in a search engine. While consumers can obviously benefit from this practice—as it allows them to see more choices related to their query and learn about new products—many companies feel this practice violates trademark law because it allows competitors to benefit from their goodwill.

Yet, it concludes by saying that it should not be banned,

Courts should resist their judgments that this behavior is morally reprehensible, as it will distort their application of the law. Keyword banner advertising does not confuse consumers because consumers expect that the ads are not connected to the trademark. Nor are claims of dilution likely to be successful. Keyword banner advertising is not trademark infringement, and describing the practice as devious or deceitful mischaracterizes the true situation.

Trademark owners frustrated by these decisions can pay to advertise with their trademarks, thus preventing competitors from doing so. Alternatively, they can pressure search engines to refrain from selling their trademarks to others. Courts, however, should not be overly sympathetic and unduly extend the protection of trademark rights. Trademark law focuses on protecting consumers. Consumers are helped—not harmed—by keyword banner advertising. Proper application of the law and considerations of policy should lead courts to allow the practice to continue, fostering competition and benefiting consumers.

Sounds about right to me, although I’m not even sure I believe it’s morally dubious if it doesn’t displace the trademark holder’s listings and is clearly identifiable as a paid ad.

9/11 Commission Finds Its Spine

Another story buried inside the national edition of the Times is Commission on 9/11 Attacks Issues Subpoena to the F.A.A. Here’s the key part:

In a statement, the 10-member commission said it learned within the last few days that “various tapes, statements, interview reports and agency self-assessments highly material to our inquiry inexplicably had not been included” in the materials from the aviation agency. “It is clear that the F.A.A.’s delay has significantly impeded the progress of our investigation,” the statement said.

…

Government officials with knowledge of the commission’s work said the panel and its staff were particularly alarmed by the discovery that they had not been provided with detailed transcripts and other information about communications on Sept. 11 between the the F.A.A. and the North American Aerospace Defense Command, or Norad, the unit of the Pentagon that is responsible for defending American air space.

I’ve argued before that the 9/11 commission is a possible sleeper issue of serious magnitude. This latest develpment (cover-up?) is consistent with that hypothesis.

I was particularly struck by the illogic of the Republican chair’s attempt to explain why they have not been issuing subpoenas until now:

The bill creating the commission provided the panel with subpoena power, although its chairman, Thomas H. Kean, the former Republican governor of New Jersey, had repeatedly said that he was hesitant to use it, in part because of the delays that it might cause.

Well, that didn’t work real well, did it?

The bipartisan commission also warned that it was considering subpoenas for material from other executive branch agencies and that the resulting delays could force it to extend its investigation beyond May, when it is supposed to complete its work.

The possibility of an extension is worrying to the Bush administration, since it could mean the public release of a potentially embarrassing report in the heat of next year’s presidential campaign.

…

“Once this issue came to light —just in the past few days — the F.A.A. provided the commission with dozens of boxes and materials that its representatives now claim satisfy our request, and they pledged the F.A.A.’s full cooperation,” the panel said. “This disturbing development at one agency has led the commission to re-examine its general policy of relying on document requests rather than subpoenas.”

Leaks About Leaking Investigation

Much of the most interesting news today was nowhere near the front page of my paper. One of these was the buried item, Senior Federal Prosecutors and F.B.I. Officials Fault Ashcroft Over Leak Inquiry, which appeared on page A16 of the national edition of the New York Times.

Mostly it’s a bunch of near-gossip, albeit firmly based on prosecutorial experience: people in charge of investigations that touch their bosses and friends usually suffer, even when they don’t screw it up accidentally or on purpose. Recusals protect more than the investigation — they also protect the person with the conflict from accusations. So the professional prosecutors and mid-level politicals in Justice are worried that either Ashcroft will do something bad, or he won’t and still get unfairly blamed for it. Either way, the unamed sources think it would be better to get him out of the picture.

There is, however, one smoking gun here. Inexplicably you have to read to the end of the story to find it.

It’s been mentioned before, but it’s nice to see that it’s not forgotten:

Mr. Ashcroft and Alberto R. Gonzales, the White House counsel, have also been under fire for their initial handling of the case. The Justice Department allowed the White House to wait overnight on Sept. 28 before sending an electronic message ordering White House employees not to destroy records related to the leak.

Ashley Snee, a spokesman for Mr. Gonzales, said he believed the delay was acceptable because no one in the White House had any idea there was an investigation. But The New York Times and The Washington Post had reported the day before that the C.I.A. had forwarded the matter to the Justice Department for possible investigation.

There seems to be a Washington law that the cover-up snares more people than the crime/non-crime. There’s a decent chance that rule may control here too.

I think Mr. Gonzales’s Supreme Court hopes took a big dive this week. That could be bad, as the other qualified Hispanics the administration likes to talk about are considerably worse.