October 20, 2011
Keyword Metatags are Back...Will Judicial Freakouts Continue?
By Eric Goldman
Keyword metatags are back, and I couldn't be less thrilled. Few Internet technologies have so thoroughly baffled judges as keyword metatags.
From a technologists' perspective, keyword metatags were a 1990s experiment by public search engines at improving their rankings. The experiment failed, of course, as marketers overgrazed keyword metatags. Seeking to improve their relevancy, the search engines quickly reduced or eliminated the weight they assigned to keyword metatags in their ranking algorithms. As a result, keyword metatags probably reached their peak efficacy in the late 1990s and quickly slid to irrelevancy. The final technological blow (so we thought) was in 2009, when Google finally publicly announced that it didn't honor keyword metatags at all (a fact we had known informally for years).
(A side note: keyword metatags are still useful for internal search engines when the search engine can trust the metatag creators' intentions. That trust is completely lacking in the public search engine environment).
Courts started dealing with keyword metatags in the late 1990s, when keyword metatags were at their zenith. Even then, courts ascribed far more power to keyword metatags than the search engines did, effectively treating them as the neutron bomb of ranking tricks. However, while keyword metatags were a quickly passing technological fad, it's taken more than a decade for judges to entertain the possibility that keyword metatags are not omnipotent. See, e.g., Southern Snow v. Snowizard from earlier this year. As usual, the legal system is massively lagging the technological environment. But after Google's 2009 announcement, and given its dominant share of the search market, I had hoped savvy litigants would have an easier time convincing judges that keyword metatags were legally irrelevant.
Thus, I was crestfallen to see Danny Sullivan of Search Engine Land announce that Bing explicitly considers keyword metatags in its ranking algorithm. Bing may be an also-ran, but it's a big enough player to muddle the keyword-metatags-are-dead message for judges. This can only mean one thing: the legal death of keyword metatags presumably got pushed back another decade.
However, Bing's consideration of keyword metatags is a far cry from the initial implementation in the late 1990s. Whereas the initial implementations treated keyword metatags as a "plus factor" for ranking, Bing treats them as a negative factor like spam--i.e., a few types of keyword metatag misuse (apparently, keyword stuffing) will reduce the website's ranking instead of improving it. In a sense, Bing technologically treats users of keyword metatags as presumptive bad guys.
It will be interesting to see what this does to the keyword metatag jurisprudence. Scenario #1 is that judges get the message that websites using keyword metatags are now even less likely to rank favorably on indexed terms than if they didn't use them, so keyword metatags reduce the chance that any consumer saw the defendant's website. This only further reinforces the idea of keyword metatags as the tree that falls in the forest when no one is around to hear it.
Scenario #2 is that judges will treat the inclusion of keyword metatags as further confirmation of the defendant's bad intent. After all, if Bing technologically treats the defendant website as a presumptive abuser, the judges could equally assume bad intent by the defendant. The judge's assessment of the defendant's intent is a huge driver of the likelihood of consumer confusion analysis, so further equating keyword metatag usage with bad defendant intent will lead to many more defendant losses.
The advice to websites remains the same as it has for many years: don't include third party trademarks in keyword metatags, period. We can now say with confidence that, at best, it won't help technologically; and at worst, it could hurt the website both in Bing's rankings and in court.
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