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Thursday, 5 November 2009

Metatags, adwords, killing kittens and the cat-dog dichotomy

Last Sunday the IPKat carried a note by his good friend Uli Hildebrandt of a recent German appellate decision on liability for links and adwords. This piece, "Liability for links and adwords, German style -- and a visit to Google Translate", has attracted a lively comment from another of the IPKat's good friends, none other than fellow blogger Maximilian Schubert (Austotrabant). Writes Maximilian:

"Of Cats and Dogs -- or the Difference Between Keyword Advertising and Meta Tags

Actually, I do think making a proper distinction between Keyword Advertising and Meta Tags is important in law; below, you will find a list of three reasons as to why:

1: Because they aim for different effects
With the help of metatags, people attempt to transport content or to improve the ranking of a site in the SEARCH RESULTS, while Keyword Advertising is used to display ADVERTISEMENTS above (Top-Ad) or beside (Side-Ad) the search result. While users soon "learn" to ignore these ads (for more details on this effect see Level of Trust in Search Engines), trying to smuggle oneself into the search results is a way of exploiting users' incredible, and most probably unfounded, trust in the ranking of search engines (please see here, under Do Users notice the Ads?). So, while the first is a method of advertising, the later one aims at deceit. But does this make any difference in practice? It does! Why?

2: "Because mummy said so"
Let's face it, this has always been the longest-running and best-ever argument in the world. The market leader has officially declared (again) that it does not consider metatags for the ranking of its search results. Maybe others do, but Google at any rate hasn't since 2004(!). So, as there already is a difference in practice, the question is, shouldn't this difference be reflected in the law as well ...?

3: Because evolution/development just keeps moving on
Although cats and dogs are both mammals, only a few would argue that they are the same. While it is completely reasonable, and in some cases even necessary, to develop analogies between existing practices and new ones, this does not mean that the old terminology should be forced on to new phenomena. The analogy might later (in fact) turn out to be perfectly applicable, but using the old term might prove problematic and should be regarded as unprofessional.

(And dear colleagues let's face it, not everybody who has been given a BlackBerry by his/her company or has bought him/herself a new shiny/stylish iPhone is an IT-lawyer. This stuff IS sometimes a bit complicated - otherwise my doctoral thesis would prove to be rather pointless!)

Please feel most welcome to disagree any or all of the above and feed this troll by commenting".

2 comments:

Carlsen said...

Incredible sharp analysis!

Birgit said...

Indeed! Wise words :-) Miau and Meow.

Even the various Higher Regional Courts in Germany seem to finally have to this happy(?) conclusion:

Hidden metatag = infringing trade mark use and potentially "evil".

Sponsored link, clearly separated from organic search result, but triggered by keyword = well, not so evil and no trade mark use ... so not infringed.

If it is all so easy, we wonder why it took them so long to figure out. Are lawyers all overwhelmed with technology or are things perhaps a trifle more complicated??

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