Court debates dealing with Internet search engines are becoming more and more familiar. A growing problem is the order in which sites come up when users put in keywords. Another issue is whether it is the search engine's responsibility to put websites earlier in search result pages because at the moment, they are not always listed in the best order, or they are preceded by paid placement. With the billions of websites in the internet world, it is important for the search engines to list the most relevant searches at the top of their findings, without the use of paid placement.

The number of web sites in the internet world is rapidly growing. "According to the Office of Research, Online Computer Library Center (OCLC), from 1998 to 2002, the annual increase of public Web sites (sites providing free, unrestricted access-or at least a significant portion of their content-to all) was between 35 percent and 55 percent and the number grew from 1,457,000 to 3,080,000 (Zhao 2). This is a leading problem as to why it may be difficult for search engine users to quickly and easily access the results they are looking for.

F. Gregory Lastowka, a specialized lawyer dealing with the Internet and intellectual property presented this case in "Search Engines Under Siege." In his writing, Lastowka adequately provided the reader with many court cases dealing with search engines. He wrote that many sites are willing to pay the search engines to be listed first under popular search terms, that do not necessarily have anything to do with their website. These paid placements have received many criticisms, however (143).

Some of the criticism stems from people believing that paid placement could potentially be deceptive to search engine users. Paid placement is when a search engine accepts payment to list a web site as a sponsored site that would normally be listed much farther down the result pages. Some search engines also accept money to list a web site under the results for popular keywords, such as "toys" or "flowers." The creators of web sites believe that users normally consider search engines to list the best matches first, not to list in the order that they are paid (Lastowka 143).

A court case involving the use of paid placement is the Nissan Motor Co., Ltd. V. Nissan Computer Corp. The Nissan Motor Co. brought suit against Nissan Computer Corp. for using the domain name Nissan.com. However, this case did not achieve much because the Nissan Computer Corp. had been using this domain name for twenty years. The Nissan Computer Corp., in turn, brought suit against the Nissan Motor Co. for using paid placement to be listed above the computer corporation when typing in the keyword "Nissan" and Nissan.com.

Judge D. Pregerson noted how prior decisions had found traditional trademark law to be applicable to Internet domain names and metatags. After discussing metatags, the court stated that there was no good cause for not extending the protections afforded in metatag cases to cases in which a company infringes a mark by purchasing a search term. However, the court found the Nissan case was not such a case, as Nissan could not infringe upon its own mark. (Lastowka 146)

Another reason for the disapproval is that many of the search engines do not specify that they were paid to list some results earlier that normally would be placed further down the result page. In this case, users would automatically assume that the first results were based on relevancy to the keywords. The FTC looked into the case and wrote that the companies should make sure that they "distinguish any paid ranking search results from non-paid results with clear and conspicuous disclosures; clearly and conspicuously explain and disclose the use of paid inclusion; and make no affirmative statement that might mislead consumers as to the basis on which a search result is generated" (Bagner 1). This is necessary to ensure that users of search engines do not get confused and access pages that they do not wish to view.

Lisa Zhao wrote an interesting article that contributes to the argument of paid placement. She contended that the attention span of users trying to access information to a specific keyword or words, is very short. It was stated in her writing that "the average number of pages surfed at a site was almost three, users typically requested only one page" (2). Numerous experts concur on the fact that "the average users' patience lasts between four to ten seconds" (Zhao 2). This brings upon the problem that some of the better sources of information to the user might be buried hundreds or thousands of pages down. But who in the world is willing, or has time, to surf through thousands of pages?

It has been found that the average user of search engines will view two to three pages and then move on if they are unable to find what they are looking for. That is why it is necessary for the search engines to list the best results in the best order possible (Zhao 2).

Not listing the most relevant and useful results first will have a negative effect for the search engines also. People will lose faith in the program if they are unable to find a match for their keywords and switch to a better search engine. It would be beneficial to the search engines to come up with a way of listing the priority matches first, without paid placement to distract viewers.

It seems reasonable for the search engines to come up with some way that they can sort the results most useful for the user at the top of the result page. A logical suggestion for the search engines is to read the web sites and know what they include so they can be matched to the keywords users enter. As Google itself claimed, "Google goes far beyond the number of times a term appears on a page and examines all aspects of the page's content (and the content of the pages linking to it) to determine if it's a good match for your query" (Zhao 8). Another solution could be better technology for the robots that read and sort the web sites in search engines. If they were more specified, they could possibly help cut back on the confusion with paid placement and the order in which the results are listed.

It does not seem logical that the search engines cannot find a way to put the best results at the top of the result page. It does not seem that hard for the search engine to match the results to the best of their ability.

The web sites can also do their best to be listed among the top results. When typing their keywords for their metatags, it is not always best to list as many possible keywords as possible, as pointed out by Zhao (8). The best solution is to type the correct keywords to match to their home page.

With all of the problems arising in the internet world about paid placement and the order results are listed, things could inevitably become very complicated. It may be that the only solution is for both sides to reach an agreement to make it less confusing for users searching for results. The web sites could work harder at writing the best metatags that match their homepage the best. The search engines could, in turn, read over the web sites and make sure they are matched in the correct order.

Bagner, Jessica, Selby, Sharon, Sonu, Christine, Tantono, Welly. Intellectual Property & Technology Law Journal. Clifton. Oct. 2002. Vol. 14, Iss. 10

Lastowka, F. Gregory. Intellectual Property & Technology Law Journal, Search Engines Under Siege: Do Paid Placement Listings Infringe Tradmarks, Vol. 14, No. 7.

Zhao, Lisa. Information Technology and Libraries. Chicago: Sep 2004. Vol.23, Iss. 3.

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