This post aims to provide a brief insight into some of the issues discussed at the conference “Suchmaschinen zwischen Informationsfreiheit und Wissensmacht“ (‘Search Engines between Freedom of Information and the Power of Knowledge‘) held at the Georg-August University of Göttingen on the 28th of January 2011 and the inaugural lectures of Prof. Dr. Torsten Körber LL.M. and Prof. Dr. Andreas Wiebe LL.M. held on the 27th.
Issue #1: Only A ‘Sheikh’ Would Have Enough Money To Finance A Google Rival
One issues that got mentioned by almost all speakers was that the costs of building a Google rival from scratch would be astronomical. E.g. Dr. Sander-Beuermann (University Hannover, Suma e.V.) found that running a global search engine whilst using open source software and only focusing on the search functionality would require minimum starting funds of at least 3.3 billion EUR. Taking into account that this is about the budget of a mid-size German ministry, Dr. Thorsten Ricke (ITM Münster) as a side-remark joked that most probably only a sheikh would be able to rise the capital for a new Google rival.
Issue #2 : Is There A Search Engine Market?
The question whether a market for search engines or search engine advertising exists was by far the most discussed question of the conference, which was also addressed especially by Dr. Torsten Körber (Univ. Göttingen), Dr. Claudia Keser (Univ. Göttingen), Dr. Thorsten Ricke (ITM Münster), as well as RA Julia Holtz (Google):
Very short and non-exhaustive summary (in random order of topics):
For new search engines a high market entry barrier exists, while in the market there is kind of a “winner-takes-it-all” situation. Körber noted that it seems as if there is not so much competition in the search engine market, but a lot of competition for the market.
The fact that the use of the search engines is generally for free – while at the same time being of great importance/value for users – might be the reason why – until recently – there has been very little political interest for regulating this market/service. Unlike the market for the television-advertising audience, no market for a search-engine audience could be established/defined so far.
Other than the effort needed to change from product A to product B. (e.g. the operating system of a computer; hint: Windows XP “N” without the Internet Explorer and the Media player), only very little effort is needed to change from search engine G to search engine B. Julia Holtz in this respect mentioned a ‘mail-ware-incident’ in 2009 which immediately led to a distinctive shift of unsatisfied users (temporarily) changing to Bing.com. Holtz also mentioned that at least 30% of all German Google users will also use another search engine from time to time, a fact she called “multi-homing”. Another issue raised by Holtz was that if there would be a market for online-ads, one might differentiate between Cost-per-Click (CPC) ads, which are mainly used for direct marketing on the one side, and Cost-per-Million (CPM) ads, which are mainly used to raise brand awareness. Holtz however admitted that this distinction could not be upheld, as studies have shown that CPC-ads also lead to increased brand-awareness.
There is an enormous pressure for being the most innovative service (e.g. Google Maps vs Bing Maps) in the market, as falling behind in innovation would mean a loss of searchers (is it true that Microsoft’s IE6 was not improved for about 6 years?)
While the media and politicians frequently call for anti-trust measures, one should not forget that the creation of monopolies per se is not and should not be forbidden. Only the abuse of a dominant position in the market is forbidden. That is because otherwise a successful entrepreneurial product would in fact be punished for being successful.
The new economy has shown that new services in the online environment can rise like shooting stars, but disappear at nearly the same speed (e.g. AOL, MySpace).
Concerning the ‘essential facilities‘ doctrine, it needs to be said that access to a facility only HAS to be granted if there is no other possible way of entering a contractual relationship (e.g. the only supplier of gas on the market. In the case of Google/AdWords, an advertiser might still show ads in other places (other content networks) or on other search engines (Bing.com) or ask potential customers to enter the URL of the webshop. If an alternative exists, although the alternative might be cumbersome and thus almost unrealistic, the essential facility doctrine should, according to Dr. Körber, be interpreted restrictively and not be applied. The author struggles to agree with this finding in the light of a previous post written about the information campaign on Google about the funding Brandt Herschman.
Concerning empirical research on the issue, it became obvious very soon in the discussion that there are two kinds of studies on this topic: those sponsored by Microsoft and those sponsored by Google😉
Issue #3: Are Highly Relevant Ads Being Perceived As Search Results?
One thing that struck the author was when Mr. Redmer (New Business Developer @ Google) in the opening words of his presentation stated that one of the reasons for Google’s success lies in the fact that Google’s search engine results page (SERP) “doesn’t look at all like ads“. (“sieht so gar nicht nach Werbung aus“). Mr. Redmer went on to say that on Google ads should be considered by the users as useful additional information instead of being annoying.
When asked, Mr. Redmer stated that it is one of Google’s aims to provide ads which are as relevant as search results. Mr. Redmer however stressed multiple times that Google will fulfil any national requirements concerning the clear labeling of ads.
Mr Redmer’s statement made me wonder; if users perceive the ads to be as relevant = interesting to them as the search results are, couldn’t that lead to a situation where:
1: people will care (even) less about whether the information they are looking at stems from the search results or from the ad-section of the SERP and
2: people will subsequently get used to very high quality standards and, as a consequence, users might tend to assume that, when searching for a trademark, the information they are looking at might also stem from the TM-owner.
I think it is safe to argue that users to some degree expect the TM-owner to appear somewhere inside the (organic) search results, a view the ECJ obviously also shares. So IF the relevance of ads is as high as the relevance of the information displayed in the search result, it will be harder to argue that ambiguous ads do not adversely affect the function of indicating origin.
Issue #4 ‘No need to ask’; Google Anticipates What You Would Like To Know
Concerning Augmented Reality services, Mr Redmer indicated that it is one of the aims of Google to supply users, following their prior explicit consent, with information even before they articulate the question (e.g. you are walking down the street, rain clouds approach and before the first raindrop has even hit you, Google points you to the nearest umbrella shop). When asked if such a service couldn’t be seen as an unfair marketing practice, Mr. Redmer replied that the customer, by previously consenting to such a service, would not only have in advance requested/authorised this type of commercial, but at the same time (to stick with the umbrella example) all shops selling umbrellas would be able to offer bids in the system. This argument only kind of convinced me, as the existence of such a service could imply such a serious marketing advance that in the long run all shops would effectively be bound to advertise on Google to survive…
One other statement which was very interesting in this context is that, according to Redmer, one of the reasons why there are no ads on the home-pages of Google is that at this point the users have not (yet) expressed any interests. So referring to the paragraph ahead, if such an advertising system were to be set in place, we should expect to find an ad for a gift/flower-shop the day before your parents’ birthdays.
Issue #5: Mobile Devices Are A Supplement, Not a Replacement For Traditional Means Of Web-Access
Concerning the use of mobile devices, Mr. Redmer explained that such devices do not and will not replace traditional devices, but only “fill the temporal gap” while users e.g. commute to work. To illustrate however the importance of mobile devices, Mr. Redmer cited a young woman called Phillipha Grogan, who told the Guardian that “I’d rather give a kidney than my phone…“
Issue #6: A New ‘brick & mortar world‘ Analogy For Google:
To add one more analogy to the – already – large number of non-fitting analogies, Mr. Redmer in his presentation said that Google should be seen as a telephone-switchboard (“Telefonzentrale“). Any thoughts on that my dear readers?
Issue #7: Right-Holders vs The Internet; ‘the pendulum swings back‘
Dr. Wiebe’s presentation was highly interesting from many points of view, but the issue that struck me the most was when Dr. Wiebe discussed the German BGH thumbnail decision according to which anyone publishing content on the web (by e.g. displaying pictures of own paintings) gives his/her implied consent that the information can be copied and processed by search engines, unless the creator has taken steps to avoid this by e.g. using a robot.txt. The explanation for this extraordinary right-holder unfriendly approach could, according to Dr. Wiebe, lie in the fact that in the early days of the web, rights-holders received a disproportionately high level of protection and now “the pendulum appears to have swung back” towards the rights of the public.
Issue # 8: Keyword Litigation Only Supports The Interests Of Lawyers
One point Dr. Ulrich Hildebrandt repeatedly stressed in his presentation was that TM-owners should think carefully before approaching a potential infringer, as a keyword-advertising-TM-claim would usually be of greater benefit to the proprietor’s lawyer than to the proprietor him/herself.
Summing up the event, one can only congratulate the organizers who managed to bring together not only scholars and practitioners, but also high-profile members of the industries, both as speakers and as members of the audience. One can only hope that this event will be repeated soon, maybe even in Austria.
For a short summary in German please also see >>here<<.