Google vs. Utah: State takes flak for its attempts to police Web
The Utah Legislature has earned a name for itself trying to police the electronic frontier, and it isn't that of Gunsmoke's Sheriff Matt Dillon, but his often incoherent deputy, Festus.
"Utah has an unrivaled track record of enacting dumb, regressive, unproductive Internet laws," notes Eric Goldman, director of Santa Clara University's High Tech Law Institute in California.
Adds XMission founder Pete Ashdown: ''I meet people all over the country who are just, like, shaking their heads and saying, 'What in the world are these people thinking?' ''
One day after Google blasted the state's latest Internet crackdown as harmful to consumers and unconstitutional, Sen. John Valentine is thinking it might be time for meetin'.
The Orem Republican says he is inviting representatives of Google, Yahoo, Microsoft, America Online and any other company rankled by Utah's Trademark Protection Act to share their views. The law, adopted unanimously despite warnings from state lawyers that there was a "high probability" it would be overturned in court, prohibits the competitive use of trademarked terms as triggers for keyword advertising.
Valentine says there is something wrong when advertisers can pay search engines to "steal" the trademarked names of their competitors, and "Utah likes to protect businesses from predatory practices." The state, he adds, is on the forefront of technology, winning national awards for its legislative Web sites.
Utah's solution to Internet trademark problems "might not work," Valentine says, but he cheered the state's tenacity. "Sometimes you have to push a little bit to get a social consciousness to solve problems."
Sen. Dan Eastman, a co-sponsor of the law, says it would give Utah "a neat little cottage industry" in registering trademarks. And the law allows the state to charge up to $250 in registration fees.
"Utah could be the Delaware of trademark law," adds Matthew Prince, CEO of Unspam Technologies, noting companies will have to hire Utah lawyers to register their trademarks or sue competitors. "This law is an incredibly powerful tool for making Utah more business-friendly."
It's also a tool that could net Prince, who helped write the trademark legislation, another state contract. After pushing lawmakers to create a child-protection registry in 2004, Unspam snagged a lucrative deal to manage the database. Likewise, Prince said he might bid on the trademark contract if the state decides to hire an outside company to handle that database.
But mostly, Prince said, he likes the idea of helping Utah stay on the vanguard of technology, noting "the deadly sin motivating me is more likely to be pride than greed."
As for Gov. Jon Huntsman Jr.'s intentions: "This is truly watching out for the citizens of Utah and protected trademarks," said spokeswoman Lisa Roskelley. "It's not an embarrassment at all."
That point is up for debate.
"Legislators enact stupid laws all of the time, but some laws transcend mere stupidity and produce a single, three-letter response: WTF? And no legislature has passed more WTF Internet laws than Utah's," Santa Clara's Goldman wrote on his blog.
In a phone interview, Goldman said the Utah Legislature reminds him of pornographers Playboy and Perfect 10, publishers that "freaked out" in the early 1990s and developed "extremely aggressive interpretations of copyright law" that rarely held up in court.
"No one is saying Utah legislators are stupid. But there is a systemic problem with the legislative process [in Utah] that continually leads to bad outcomes," Goldman said.
"It's like they are more interested in presenting themselves as being on the forefront of technology and seeing what happens, than passing good laws," adds XMission's Ashdown. "I am continually concerned our technological edge that has been so prevalent in the late '80s and '90s is being whittled away by these bad ideas."
Corynne McSherry is an attorney with the San Francisco-based Electronic Frontier Foundation (EFF), a collection of lawyers and activists committed to protecting "digital rights." The group is suing AT&T for collaborating with the National Security Agency and handing over the e-mail of their customers.
McSherry says Utah's new law poses a serious problem for the state, noting the EFF probably would support a lawsuit. Keying off a trademark to give consumers information about competitive products is fair use and protected under federal trademark law, she says.
"If it weren't, we wouldn't have the Pepsi Challenge, Apple wouldn't be able to make fun of Microsoft on national television every night, and Burger King wouldn't be able to put up a billboard next to a McDonald's," McSherry says.
"If I were a Utah taxpayer, I would wonder why my representative wanted to vote for a bill that hurts me as a consumer and one the state's own counsel said is unconstitutional."
Ragula Bhaskar, founder and chief executive of FatPipe Networks, a Salt Lake-based technology company, is a Utah taxpayer and he lauds the state's effort.
"Bloggers will complain about free markets, but bloggers don't pay the bills," Bhaskar says. "People like me have to meet payroll and we have to protect our property."
* Nation's first digital signature law, 1995. No company ever qualified and the state repealed the law "after 11 years of futility."
* A child protection registry of 2004, requiring adult-oriented advertisers to submit their e-mail lists to be "scrubbed" of e-mail addresses to which minors have access.
* The 2004 Spyware Control Act, struck down in federal courts, which would have outlawed software that tracks computer users' actions online and creates pop-up ads.
* A 2005 law allowing Utah's porn czar to put porn Web sites off-limits. The state had to repeal parts of law, but litigation is ongoing.