A Protest Screws Santorum in Search
Back in 2003, sex advice columnist and outspoken gay rights activist Dan Savage created a protest site about then-Senator Rick Santorum’s anti-gay rights views. The site (spreadingsantorum.com) is based on a sexual neologism proposed by Savage’s radio audience, and redefines the now-Presidential candidate’s name as “the frothy mixture of lube and fecal matter that is sometimes the by-product of anal sex.” Heavens.

Savage admits it’s a crass joke, but one intended to sting.  And now, nine years after the site’s creation, its causing Santorum real grief, as the protest site has eclipsed even his own campaign page in search results on his surname.

Who Is Responsible When You Don’t Like Your Search Results?
Santorum says these negative search results are another sign of liberal media bias, equating Google’s refusal to censor the search result as allowing something akin to hate speech. Santorum told Fox News, “If you’re a responsible business, you don’t let things like that happen in your business that have an impact on the country.”

Of course as Danny Sullivan aptly points out, this isn’t a “Google” problem. Its a Bing, Yahoo, and Ask problem too. In fact, on Bing, Santorum’s official campaign page doesn’t even make the first page of search results. To reframe Santorum’s complaint, “If  you’re a responsible candidate with a team dedicated to electronic marketing, you don’t let things like this happen.” And you certainly don’t make it worse by limiting your own site to just two Flash pages.

Santorum’s SEO Suicide
After winning Iowa, the Santorum campaign tried to optimize donations by effectively moving their campaign site, and having all traffic hit a two-page Flash site focused on donations. That kind of content won’t draw a lot of links, for a start. And let’s face it: a donation form is a lot less remarkable than the attack site SpreadingSantorum.com. The campaign has since shifted back to running a campaign site on Santorum’s name, but it’s too late.

When the Law Isn’t with You.
There’s a saying in government: “If the law isn’t with you, use public sentiment, and if you don’t have that, argue public policy.” That’s what Santorum is doing here. He’s asking Google to fiddle with its results — to allow politics dictate their results. Which, ironically, is just what he initially accused them of doing.

What does Santorum have to say about the fallout from Dan Savage’s work? Last year he told Roll Call: ”It’s one guy. You know who it is. The Internet allows for this type of vulgarity to circulate.”

In this, he is fully wrong: If this were just about Dan Savage, SpreadingSantorum would be nowhere near the top of the search results.

SpreadingSantorum is a far older domain that RickSantorum.com; it has been actively updated for years. Senator Santorum should have started a site on his own name in response years ago. The site also has thousands more links from blogs like this, and the media, as this story spreads.

Sadly for the Santorum team, each link, mention, or tweet about posts like this just makes the situation worse. So there, now you can vote, in in the primary but on who you is responsible for Rick Santorum not controlling the top listing on his own name.

It’s not surprising that there was a gaggle of press attention over Google’s release of a new version of its Gmail product.

No surprise, either, that Google produced plenty of graphics so reporters wouldn’t have to figure out how make a screen shot. The graphic shows a typical Gmail in-box as it would look with some of the new themes. Of course, the emails shown have the names of the people who sent them, just as your Gmail does.

Now this is where the surprising and creepy thing happens: Instead of dummying up a version of the interface with a fake name (like every spammer uses), Google used a real person’s emails.

I know they did this because that real person – Anna Bolotovsky – is a friend of mine.

Anna, and the rest of the world, found out about this because it was used on CNN and beyond. This was not some sort of weird name coincidence thing. Google her and you’ll find that she is the one and only person online with this name. Further proof this wasn’t a weird coincidence: The subject line was from an email she had sent.

If this doesn’t bother you, try putting yourself in her place: You look up at the TV and there, for the world to see, is your email, which you sent with some basic expectation of privacy. While people have differing ideas about online privacy, I think we can all pretty much agree that having your emails used for marketing is beyond the pale.

Now I’m far from an extremist about Google. I have far more enmity toward airlines who play with their prices to screw me at every turn. Google has provided me free or cheap useful products, and put the power of advertising in the hands of small and large business alike. I’m a Google certified analytics pro, and have made professional bones in SEO in the news and culture business. Google’s been good to me.

And I know that Google makes its money by dicing and slicing and reselling – in one way or another – information about me and everyone else on the planet. For the most part I don’t mind, because I have felt it’s a fair trade. They sell the contextual ads that appear next to my emails and I get free and reliable email with pretty much unlimited storage. And, to be honest, sometimes I find those ads useful and sometimes they’re so far off the mark that they are like reading fortune cookieis.

But I’ve always understood this to be a fairly anonymous process. Some machine scans the email for keywords or terms and voila! – the ad is placed. That feels like I’m a distant participant in their marketing. But what happened to Anna is just creepy.

Now Google is many things, but dumb isn’t one of them. So we’re left with two possible explanations for how this came to pass.

1. Marketing was lazy and screwed up.
2. Something in the Terms of Use agreement that no one (except the company’s lawyers) have ever read makes this “legal.”

Terms of Use agreements are a fascinating and underexplored art form. I doubt one in a million users actually reads the damn things. Using iTunes may very well mean Apple now has dibs on my soul, for all I know.

In lieu of our souls, most of these agreements claim that users have excused the service provider from even the most negligent or malfeasant acts. Some agreements say users agree to address disputes in forums that can be highly biased towards the firm.  All this with a click of a button. And though they may claim your soul in their grant of use, there are a ton reasons these may be unenforceable.

When Marketing and Legal Are Bait-and-Switch
Now obscuring these claims is a two-pronged effort. One part is by burying the actual terms under a mountain of legalese. The other is that the marketing portrays an entirely different picture. Google’s marketing likely portrays happy users getting their email conveniently in the service’s promotional materials, without disclosing that the cost for this was a grant to sell our data or encroach on our otherwise protected right of publicity.

For the sake of argument, imagine that such absurdly broad terms included a codicil allowing the firm to physically sneak in to its users’ homes after dark. Would you imagine such an agreement to be conscionable without a fair exchange of value, and without an exceptionally clear meeting of the minds around such terms? I for one would expect to see such unusual costs and benefits in marketing’s description of the service, not just the legal department’s six-point font.

The aggregate damage of the thousand cuts of firms trading people’s private information can allow the equivalent of strangers to enter your personal life. You may recall the post where I described how just three pieces of non-private data (gender, birthday and zip code) can be used to uniquely identify a person and connect to their social security number for data mining. As an aside, consider how many store discount programs know this and more about you.

As a non-lawyer, I suggest that no matter what Google’s terms of use say, Anna didn’t waive her right to privacy, because the non-legal reality of Google (which after all is a service provider) created the reasonable expectation that they’d provide a suitable service. And no jury of my peers would construe having my name and examples of my personal email released to CNN as suitable. Would yours?

Yabba-Dabba-Sue, says Tampa Bay Online, covering the lawsuit filed by Terry Bollea, better known as Hulk Hogan.  Watch the video below, and tell me if you’d want to be in the legal ring with this litigant.

Post’s Flintstones cereal ad used a character that not only looks like the Hulkster, but goes by the similar-sounding name “Hulk Boulder.”

The ABA journal quotes the lawsuit, which contends that  Hogan actually wrestled under that exact name early in his career, until wrestling promoter Vince McMahon Sr. suggested that he use an “Irish name.”

McDonald’s recently had a similar difficulty in using the 80′s music group DEVO’s appearance — see Are We Not Ligitants? We are Devo.  Given the choice, I’d rather tangle with the old New Wavers than with an aging wrestler, especially given the fact pattern in Hogan’s case.

According to the New York Post, actress Lindsay Lohan is suing E-Trade for $100 million for pain and suffering caused by their Super Bowl ad.

The semi-funny (and non-compelling) ad shows a milkaholic baby named Lindsay (or Lindsey) with a guilty looking baby-husband. Yes, the ad is pretty terrible; so is the legal claim. However, so much passes for online defamation lately, it is unwise to laugh this off entirely.

Lohan’s lawyer, Stephanie Ovadia, stakes out a wafer-thin claim of Personal Publicity.

“Many celebrities are known by one name only, and E-Trade is using that knowledge to profit…They used the name Lindsay as a parody of her life. Why didn’t they use the name Susan?  This is a subliminal message. Everybody’s talking about it and saying it’s Lindsay Lohan.”

If this line of complaint was allowed to stand, just imagine the case members of the Kennedy family would have against The Simpsons over Mayor Quimby. A cultural reference isn’t use of personal publicity, and a lucky judge in Nassau County will get to hold forth on this.

PETA’s Tiger Woods ad is a better case for the Right of Personal Publicity.

Ouch!

In May, St. Louis Cardinals manager Tony La Russa filed suit against Twitter in California Superior Court, essentially claiming that someone using his name was posting comments that damaged his reputation and caused emotional distress. The suit also claims damage to La Russa’s trademark rights.

Ordinarily, I would have thought little about the case, believing it would get thrown out due to the legal precedent that says those who provide such services are not liable for the content that gets posted on them.

But there are two angles worth considering here. One is called the “right to publicity,” and the other is the evolving notion of digital identity.

The right to publicity is not a federal law, but many states do have it on their books, including California. The California law states:

Right of Publicity — California Civil Code Section 3344:

Use of Another’s Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent.

(a) Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.

Skipping down to paragraph (f):

(f) Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the person’s name, voice, signature, photograph, or likeness as prohibited by this section.

Now, whereas the Twitter postings (“tweets”) were not commercial in nature, two points remain:

1. One can claim damage to one’s right to publicity through usurpation of identity and subsequent abuse.
2. Supposedly, Twitter was contacted repeatedly about removing the offending Twitter account but did nothing before the suit was filed. (The account is now gone.) Therefore, the owners of Twitter did have knowledge of the unauthorized use of La Russa’s name.

So, Twitter may not be liable for the content of an user’s posting per se, but it could be liable if the user is impersonating someone else and making comments objectionable or damaging to that real person.

And if Twitter was notified about the impersonation and took no action, they are on the hook. The tweets were, in fact, very offensive, which could be seen as damaging Tony La Russa’s reputation and right to publicity.

Whither Digital Identity?
Can anyone claim to be someone else on the internet? Yes. Anonymity works both ways. Will Twitter develop some user identity authorization mechanism? It’s already underway.

This is not only important to avoid liability issues relating to content, but also in the arena of financial transactions. Twitter is working on a payment system, and without some form of user authentication, such a system would be unworkable. Hopefully, such an authorization will serve to address financial and content liabilities at the same time.

What is interesting to me is how far this will go: Twitter as a payment and identity gateway? Blecch.

It raises the red flag of digital identity squatting. At the moment, anyone can use your name as a Twitter username (with all due sympathies to all the John Smiths out there).

By no strange coincidence, Facebook is also looking at a payment system. In addition, as of midnight June 12, users were able to create a more human-friendly link to their pages or profiles using their name. For example, if you are Zoogle McFillibuster, you can now be identitifed on Facebook by www.facebook.com/zoogle.mcfillibuster

It appears that each social networking service is establishing the framework for payment systems, and therefore, user authentication systems. It’s the threat of digital identity squatting — either for gain or for annoyance — that is the next tempest on the internet radar screen.  So, whether or not the La Russa law suit goes anywhere, at least it uncovered the issue of digital identity squatting.

“It’s your right to arrange Chen Xiao’s life, and it’s my obligation to serve you…”.

Chen Xiao has had a tough year. Blizzards covered her home town in China, her area was devastated by an earthquake.  Her best friends divorced and her clothing store failed. What’s an entrepreneur to do?  Rent your life to the Internet.

“Every time I had a plan for what I wanted my life to be like, nothing would come of it. It was very disappointing. I figured if other people came up with things for me to do, I might stumble upon something new and better,” she told CNN.

So she put her life online and offered it to China’s netizens for $3/hour. She won’t do anything illegal, immoral or violent, but she will deliver humble service. And she will memorialize it in photos, so other viewers can see what she’s done.

Tasks including delivering pet food, say hello to you on a subway platform, and performing charitable works, such as delivering food to the needy. Holding up signs at netizens lovers is her most frequent request, but she’s also attended babies’ births as a photographer, and welcomed travelers home.

What Do You Make of This?
First, CNN and other US sites have failed to actually link to Chen Xiao’s site in their reporting. To be charitable, this may be because the site is in a foreign language, so even though it’s the topic of the article, the news sources don’t imagine readers would be interested.  To be uncharitable, how can you write about a website and not link to it?

Second,  the framing of a new “right” to control Chen Xiao’s life seems particularly Chinese. The idea of being directed by a mass, or announcing a new right, seems fitting in a nation like China, where rights, both personal and property, are changing so quickly.

We’ve discussed how Brand Obama has been open to being appropriated by its supporters. Now other brands are jumping into what might be called the “O-conomy.”

Here are some products drawing on Obama’s brand equity.

In a Plea for Relevancy, Pepsi Steals Obama’s Logo

Business Week‘s David Kiley writes,
“This is a special time in America—difficult and historic. This ad and its language comes off as a ripoff. Not an homage, but a ripoff. And it cheapens the ad and the campaign.”

Dollgate: “Marvelous Malia” and “Sweet Sasha”
The maker of Beanie Babies recently rolled out two dolls that look a lot like the Obama daughters. Ty now says it’s a coincidence, and they just just dug these alliterative names. The First Lady isn’t buying that.

Nanotechnology Promotes Itself By Making Smallest Ever Obama Images
After watching a long Reuters ad, you’ll see microscopic Obama images. I’m not sure I think one whit better about nanotech because of this, but it got coverage, which seems to have been the goal.

Audi Corners Inauguration Advertising
Audi was the exclusive sponsor of streaming live coverage of the ceremony on ABCNews.com, CBSNews.com, MSNBC.com, and WashingtonPost.com, and has purchased an eight-page “Progress Is Beautiful” newspaper insert. Hey look, an auto manufacturer spending like it’s 1999.

“Yes We Can” Perfume
Have other presidents had their own scents? Marketing “Eau de Reagan” just wouldn’t work, I suspect.

The Classic Obama Thong
The use of the word “classic” on Cafe Press somehow asserts this is a Yankee tradition.

The Head O’ State Presidential Pleasure Toy
Insert your comment here.  Is that change in your pocket or….oh, come on, you can do better than that!

This is your invitation to attend a free webinar on the recent Tiffany v. eBay ruling and its impact on brands of all sizes, and those of us who support and promote them. (Since this event has already happened, please follow this link to listen and view the recorded event in its entirety, or hear other events.)

On Thursday, October 2nd, I’ll be in New York moderating a discussion between two of the most expert and engaging voices in online law. Since this will be live, we’ll be taking questions from attendees, so I hope you can join us.

You can look forward to hearing the perspectives of Martin Schwimmer, the host of The Trademark Blog. Last year I enjoyed hearing his presentation on Trademarks and the Internet.  My employer, Thomson CompuMark, is delighted that he’s able to join us again.

You can also look forward to the expert views of Oren J. Warshavsky, who will join us from the firm Baker Hostetler. If you enjoy this blog, you’ll likely want to read his thoughts on the expanding right of publicity.

While you may pose questions during the event, you can also email me on what you’d like to hear about, and I’ll gladly share your requests with the speakers. I hope you can attend, and will post an update closer to the webinar.

FCC Prepares to Punish Comcast
A majority of members of the Federal Communications Commission have cast votes in favor of punishing Comcast Corp. for blocking subscribers’ Internet traffic, an agency official said Friday.

ISP Ad Networking Scheme May Violate Wiretap Laws
The Center for Democracy & Technology has advanced a legal theory that the practice of ISPs sharing records of individual website visits may constitute illegal wiretapping.

Last Week Google Wanted to Be Second Life, This Week They’re Wikipedia
This creates a substantial new conflict of interest between Google and Wikipedia, which currently receives extremely high search authority in Google searches.

Permanent Injunction Against COPA Enforcement Upheld
This is the third time the Third Circuit has held that COPA violates the First Amendment, after nearly ten years of litigation over the law’s constitutionality. As with those previous decisions, the DOJ is expected to seek review by the Supreme Court.

Taco Bell Accused of Stealing Rapper 50 Cent’s Endorsement
In a public relations letter, the chain, owned by Yum! Brands, encourages the rapper to change his name to “79 Cent,” “89 Cent” or “99 Cent” to match their promotion. Instead the rapper slapped a lawsuit on the punk chain for leveraging his name to get their taco sale visibility.

There’s an Internet rumor circulating that Devo is suing McDonald’s for using their unique appearance in an American Idol co-branded Happy Meal.

Devo bass player Gerald Casale fueled the rumor by providing this compelling quote: “We don’t like McDonald’s, and we don’t like American Idol, so we’re doubly offended.”

But in fact-checking the story I was unable to find the case actually filed in any US court. Apparently Mickey D’s settled quickly with the band, who released a statement:

Please be advised that the story about a civil action by Devo against McDonald’s is a rumor and is completely false. No lawsuit has been filed and no litigation is pending. Any issue with the McDonald’s “New Wave Nigel” promotion has been amicably resolved on mutually agreeable terms.

Even though they won’t be in court, you can still see Devo perform “Whip It”. They are non-degradable by time, just like the tiny plastic happy meal men who bear their trademark image.