Lessons of the Google/Moveon/Collins Dust Up: My Other Shoe Drops and It Fits Quite Nicely

For those wondering about the dust up over Google dropping Ads from Senator Susan Collins (R-ME) because she used Moveon’s trademark in her ads, I reproduce below my post on the Public Knowledge blog. I don’t usually to that kind of “repurposing” of my blog content, but this one seemed reasonably important.

As Fox News and the rest of the conservative media/blog machine have happily crowed unto the skies, Google Ads dropped a set of ads from Senator Susan Collins (R-Me) critical of Moveon.org Collins is rnning for reelection, and apparently Moveon has now become the favorite bloody shirt to rouse the otherwise dispirited base. Apparently, Google informed Collins that because her ad used the trademark of someone else (here, Moveon.org, because these days everyone trademarks everything out of sheer self-defense), which Google bans under its advertising policy.

Oh the Shame!” cries the right! “Oh the hypocrisy!gloats Scott Cleland. “Moveon and Google, suppressing free speech and all!” One would not imagine, of course, from all this shock, horror and breast-beating that these folks were at best silent when Verizon initially denied NARAL’s request for a text code. But, as consistency is never the strong suite of either the “Fair and Balanced” folks at Fox or the anti-NN foot soldiers, let us go to the merits. Isn’t this just awful of Google and Moveon.org? Are they revealed now as hypocrites, liars, etc. making us all dupes, useful idiots, etc.

Well, maybe not. I tip my hat to David All at techrepublican.com for this nice piece of actually balanced reporting. Rather than fulminating, Mr. All actually asked Google for a clarification, and a Google spokesperson explained that, because dumb ass courts keep holding liable for trademark infringement if Google doesn’t make some effort to actively police its ads for possible trademark violations, Google now offers to let trademark holders check a box that says “please protect my intellectual property.” And since Moveon.org, like every other trademark holder in the universe, now lives in deathly fear of losing its trademark if some dumb-ass court decides they didn’t police it aggressively enough, checked “yes.”

But, because Google runs a, if you will pardon me, a googolplex of ads a day, the entire process is automated with key words. No human being is actually involved in the identification process, and therefore you can get your free speech rights cut off. But hey, as the IP Mafia always like to remind us, if the First Amendment ends up as collateral damage in our war to protect trademarks from any sort of use we do not absolutely control and monetize, well, it’s a shame, but that’s just the price you gotta pay. After all, you can’t expect to win the war against the public domain without cracking a few First Amendment eggs.

So no, neither Google nor the folks at Moveon knew this happened before it happened and got all over the press. Which, I expect the defenders of Verizon to point out, was exactly what Verizon claimed. And therefore aren’t we all once again hypocrites, useful idiots, base curs and scalawags, etc., etc. for having jumped on poor innocent Verzion?

To which I will say, YES! This EXACTLY like what happened with Verizon. Thank you very much for noticing! And, as I said when Verizon screwed up with Naral, when AT&T censored Pearl Jam, and every other time one of these sorts of incidents occurred. It doesn’t matter if it is an accident or intentional. The fact is I don’t want my free speech rights messed with or left to the mercy of corporations more concerned with liability than liberty. I don’t want Verizon to have to come up with policies that balance free speech and getting themselves accused of refusing to stop the spread of child-pornography or giving aid and comfort to pedophiles because they don’t have a policy to review every goddamn text code request. I don’t want Google to have to worry about what the googol of advertisers using their interactive service are doing. I don’t want ANYONE acting as the gatekeeper, the warden, the snoop and cop for any noble purpose.

What I want to have what I used to have with my phone service and until August 2005 on my DSL service. I want good old fashion Title II telecommunication service regulation that gives me all those neato-keen privacy protections and rights as a first amendment speaker. I want to have a world where Google can say “thank God I can’t monitor what goes on in my ads, even if I wanted to. Sure, I’m missing a chance to monetize things based on knowing all that information, but I’m not liable for anything and I’m not being evil, even by accident.” I want a world where Moveon can say “I don’t need to worry if I don’t check every last blasted box to protect my trademark. Sure, I may have some people driving traffic to their website off ‘my name,’ but that’s a small price to pay for free speech.” And I want even Verizon to come to its common carrier senses and say “Yah know, I was really wrong about that ‘Net Neutrality stuff. I am so much better off as a ‘dumb pipe’ not trying to police everybody’s content for the ‘sake of the children’ or for ‘national security’ or whatever other cause someone else thinks justifies snooping into other people’s speech.”

So yeah, the other shoe has dropped, its on my foot now, and it fits great. And while I’m sorry to see yet more proof of how the wild expansion of intellectual property law, what Mark Lemley rightly called the problem of The Modern Lanham Act and the Death of Common Sense has trampled on vital and time-sensitive political speech, I can hope that lawmakers take it to heart. Because I can hope and pray that folks like Susan Collins, or her sisters across the aisle Barbara Boxer (D-CA) and Diane Fenstein (D-CA), to judges like Ruth Badder Ginsburg and lawmakers and judges everywhere, will learn this valuable lesson. It’s not just the MPAA and the “Respectable” companies versus the scruffy pirates, the info commies and Al Qeda. It’s not just an industry food fight between Google and AT&T and Viacome and Youtube. There really is a free speech cost every time you ratchet up the protections for intellectual property or move away from the fundamentals of common carriage. And you, even you, Senators and Supreme Court justices, will find yourselves bit in the butt by the world you have created in your refusal to believe that real people of a real free speech stake in this. We’re not all infringers and pirates dammit. We’re SPEAKERS! Just like you. And if you don’t back off the intellectual property jihad and get back to the fundamentals of common carriage, you — just like us — will get burned.

Not that I expect anyone to learn that lesson mind. Finger pointing and accusing people of hypocrisy is way too fun. But I can dream . . . .


  1. Harold,

    Amen to that.

    Please feel free to cross-post here whatever you have written on your other blogs, etc. It’s more important to get the word out and to keep the discussion going than it is to maintain the exclusivity and editorial whatever of this or that site.

  2. I really shouldn’t but . . .

    Live by the anecdote, die by the anecdote.

    In previous examples of “corporate censorship,” proponents of net neutrality regulation viewed the facts in the light least favorable to the corporate ‘malefactors’ and found in favor of regulation. In this case, Scott Cleland did the same, illustrating, at the very least, the weakness in basing policy arguments on anecdotes.

    I agree that Google having to help police ads for trademark violations is a metastisization of trademark rights. But it’s beside the point, unless . . .

    Are you advocating for ad-network neutrality regulation to counter that?

    Again, I really shouldn’t have . . .

  3. “Again, I really shouldn’t have . . .”

    Well, always delighted to pull you back in against your better judgment.

    As an initial matter, I’m not generic advocates. I’m me. While I’ve been suspicious of folks with a history or where the incentive is obvious (e.g., Comcast dropping a clip of the “sleeping Comcast repair man”), I’ve always maintained that intent is irrelevant. I’m straightforward on “free speech is to important to be left to the discretion of a handful of private sector providers.” It is, in many ways, worse for me to see Free Speech casually cut off by mistake. When that happens, no one is safe.

    And indeed, I disagree with making this based on whether it is willful or accidental is at best a distraction and at worst a real bad idea.

    I don’t think I need t go all the way to“ad network neutrality,” although I might in Google’s case an an antitrust remedy given its enormous market share for internet ads. This issue was not so much about network neutrality as about the generally problem of what happens when we either permit or require providers of interactive services to police content. In that regard, my loathing for DMCA notice-and-take-down provisions and my support of network neutrality spring a common ideal — preserve the ability of people to speak directly to one another.

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