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Friday, April 23, 2010

Green Procurement: Overview and Issues forCongress

Eric A. Fischer
Senior Specialist in Science and Technology

Economic and environmental concerns have contributed to rising interest in green procurement— a term used in various ways but that may best be described as acquisition of products and services with smaller-than-average environmental footprints. Fully assessing a product or service requires integrated evaluation of cost, performance, and impacts for a set of green factors over all stages of the life cycle. Green building is an example of this approach. More generally, complexities and information gaps may constrict assessment options. However, where choices are comparative, partial assessments may often suffice. Because of such considerations, green procurement often emphasizes particular attributes, such as recycled content, energy efficiency, and waste reduction. Labeling and certification programs such as Energy Star, as well as other approaches, may be used to identify green products and services. While the use of green procurement appears to be increasing nationally, the success of programs is often not clear. Barriers to broader adoption include inadequate information among decisionmakers, lack of common implementation standards, real and perceived cost obstacles, and market and technical uncertainties. 

As a major consumer of goods and services with significant potential impacts on the environment, including human health, the federal government could arguably influence the adoption of green procurement generally and the market for green products and services. Federal green-procurement efforts focus largely on acquisition of products, even though services account for about half of federal procurement spending. Various statutes, regulations, executive orders, and policy documents require or encourage the purchase of several types of products because of their environmental attributes. Agencies are required to purchase alternative fuels and alternative fuel vehicles, and products that are biobased, Energy Star and energy-efficient, EPEAT (a green technology labeling program), and that contain recycled content, but acquisitions may be exempt in specified circumstances. Agencies must consider purchasing alternatives to toxic and priority chemicals and ozone-depleting substances, and environmentally preferable (EPP) products and services. Only EPP and EPEAT attempt to provide an integrative approach, rather than addressing only one or a few attributes, but they lack a specific basis in enacted statutes. 

The Office of Management and Budget (OMB) provides broad guidance through various policy documents, as does the Office of the Federal Environmental Executive (OFEE), housed at the Environmental Protection Agency (EPA). For some kinds of attributes, procurement criteria are set by specific agencies. EPA, the General Services Administration (GSA), OFEE, and other agencies have databases that help identify green products. OMB requires agencies to have green procurement plans and to report annually on their activities. Those reporting requirements appear to be largely qualitative, but quantitative reports are available for recycled-content and alternative-fuels products. 

Green procurement raises several policy questions, especially for federal acquisitions: (1) What are the most useful and appropriate policy goals for green procurement? (2) Are the legal authorities and other means by which different green product and service initiatives have been established the most appropriate for meeting policy goals? (3) How effectively is agency implementation and performance of green procurement being assessed? (4) How successful are current programs and initiatives at meeting policy goals? (5) Are policies on the acquisition of green services sufficient? (6) Are the policies and the methods of implementing them sufficiently harmonized and integrated? (7) Are there significant gaps in the preferences for green products and services? (8) Are there implementation methods not currently used by the federal government that should be considered? (9) Is training of the acquisition workforce sufficient?


Date of Report: April 20, 2010
Number of Pages: 48
Order Number: R41197
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Thursday, April 22, 2010

Access to Broadband Networks: The Net Neutrality Debate

Angele A. Gilroy
Specialist in Telecommunications Policy

As congressional policymakers continue to debate telecommunications reform, a major point of contention is the question of whether action is needed to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and non-discriminatory treatment, is referred to as "net neutrality." There is no single accepted definition of "net neutrality." However, most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network. 

A major focus in the debate over telecommunications reform is concern over whether it is necessary for policymakers to take steps to ensure access to the Internet for content, services, and applications providers, as well as consumers, and if so, what these steps should be. Some policymakers contend that more specific regulatory guidelines may be necessary to protect the marketplace from potential abuses which could threaten the net neutrality concept. Others contend that existing laws and Federal Communications Commission (FCC) policies are sufficient to deal with potential anti-competitive behavior and that additional regulations would have negative effects on the expansion and future development of the Internet. An April 2010 court ruling in FCC v. Comcast that vacated the FCC's application of its Internet principles in an order against Comcast has focused attention on the issue. Although most concede that networks have and will always need some management, the use of prioritization tools, such as deep packet inspection, as well as the initiation of metered/consumption-based billing practices have further fueled the debate. 

A consensus on this issue has not yet formed, but one stand-alone measure (H.R. 3458) that comprehensively addresses the net neutrality debate has been introduced in the 111th Congress to date. Two bills (S. 1836, H.R. 3924) to prohibit, with some exceptions, the FCC from proposing, promulgating, or issuing any further regulations regarding the Internet or IP-enabled services, were introduced in response to the adoption, by the FCC, of a notice of proposed rulemaking (NPR) seeking comment on proposed rules to, among other things, codify and expand on rules to "preserve the open Internet." The net neutrality issue has also been narrowly addressed within the context of the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5). Provisions require the National Telecommunications and Information Administration (NTIA), in consultation with the FCC, to establish "nondiscrimination and network interconnection obligations" as a requirement for grant participants in the Broadband Technology Opportunities Program (BTOP). These obligations were released, July 1, 2009, in conjunction with the issuance of a notice of funds availability soliciting applications. The ARRA also required the FCC to submit a report, containing a national broadband plan, to both the House and Senate Commerce Committees; it was released on March 16, 2010. Furthermore, legislation (H.R. 2902) authorizing the Federal Trade Commission, in consultation with the FCC, to review volume usage service plans offered by broadband providers was introduced June 16, 2009.


Date of Report: April 14, 2010
Number of Pages: 15
Order Number: R40616
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Saturday, April 17, 2010

Internet Domain Names: Background and Policy Issues

Lennard G. Kruger
Specialist in Science and Technology Policy

Navigating the Internet requires using addresses and corresponding names that identify the location of individual computers. The Domain Name System (DNS) is the distributed set of databases residing in computers around the world that contain address numbers mapped to corresponding domain names, making it possible to send and receive messages and to access information from computers anywhere on the Internet. 

The DNS is managed and operated by a not-for-profit public benefit corporation called the Internet Corporation for Assigned Names and Numbers (ICANN). Because the Internet evolved from a network infrastructure created by the Department of Defense, the U.S. government originally owned and operated (primarily through private contractors) the key components of network architecture that enable the domain name system to function. A 1998 Memorandum of Understanding (MOU) between ICANN and the Department of Commerce (DOC) initiated a process intended to transition technical DNS coordination and management functions to a privatesector not-for-profit entity. While the DOC has played no role in the internal governance or dayto- day operations of the DNS, ICANN remained accountable to the U.S. government through the MOU, which was superseded in 2006 by a Joint Project Agreement (JPA). On September 30, 2009, the JPA between ICANN and DOC expired and was replaced by an Affirmation of Commitments (AoC), which provides for review panels to periodically assess ICANN processes and activities. 

Many of the technical, operational, and management decisions regarding the DNS can have significant impacts on Internet-related policy issues such as intellectual property, privacy, ecommerce, and cybersecurity. With the expiration of the ICANN-DOC Joint Project Agreement on September 30, 2009, and the announcement of the new AoC, Congress and the Administration continue to assess the appropriate federal role with respect to ICANN and the DNS, and examine to what extent ICANN is positioned to ensure Internet stability and security, competition, private and bottom-up policymaking and coordination, and fair representation of the global Internet community. A related issue is whether the U.S. government's unique authority over the DNS root zone should continue indefinitely. Foreign governments have argued that it is inappropriate for the U.S. government to have exclusive authority over the worldwide DNS, and that technical coordination and management of the DNS should be accountable to international governmental entities. On the other hand, many U.S. officials argue that it is critical for the U.S. government to maintain authority over the DNS in order to guarantee the stability and security of the Internet. 

The expiration of the JPA, the implementation of the Affirmation of Commitments, and the continuing U.S. authority over the DNS root zone remain issues of keen interest to the 111th Congress, the Administration, foreign governments, and other Internet stakeholders worldwide. Other specific issues include the possible addition of new generic top-level domain names (gTLDs), the protection of children on the Internet, the security and stability of the DNS, and the status of the WHOIS database. How all of these issues are ultimately addressed could have profound impacts on the continuing evolution of ICANN, the DNS, and the Internet.


Date of Report: April 5, 2010
Number of Pages: 18
Order Number: 97-868
Price: $29.95

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Sunday, April 11, 2010

Access to Broadband Networks: The Net Neutrality Debate

Angele A. Gilroy
Specialist in Telecommunications Policy

As congressional policymakers continue to debate telecommunications reform, a major point of contention is the question of whether action is needed to ensure unfettered access to the Internet. The move to place restrictions on the owners of the networks that compose and provide access to the Internet, to ensure equal access and non-discriminatory treatment, is referred to as "net neutrality." There is no single accepted definition of "net neutrality." However, most agree that any such definition should include the general principles that owners of the networks that compose and provide access to the Internet should not control how consumers lawfully use that network, and they should not be able to discriminate against content provider access to that network. 

A major focus in the debate over telecommunications reform is concern over whether it is necessary for policymakers to take steps to ensure access to the Internet for content, services, and applications providers, as well as consumers, and if so, what these steps should be. Some policymakers contend that more specific regulatory guidelines may be necessary to protect the marketplace from potential abuses which could threaten the net neutrality concept. Others contend that existing laws and Federal Communications Commission (FCC) policies are sufficient to deal with potential anti-competitive behavior and that additional regulations would have negative effects on the expansion and future development of the Internet. Although most concede that networks have and will always need some management, the use of prioritization tools, such as deep packet inspection, as well as the initiation of metered/consumption-based billing practices have further fueled the debate. 

A consensus on this issue has not yet formed, but one stand-alone measure (H.R. 3458) that comprehensively addresses the net neutrality debate has been introduced in the 111th Congress to date. Two bills (S. 1836, H.R. 3924) to prohibit, with some exceptions, the FCC from proposing, promulgating, or issuing any further regulations regarding the Internet or IP-enabled services, were introduced in response to the adoption, by the FCC, of a notice of proposed rulemaking (NPR) seeking comment on proposed rules to, among other things, codify and expand on rules to "preserve the open Internet." The net neutrality issue has also been narrowly addressed within the context of the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5). Provisions require the National Telecommunications and Information Administration (NTIA), in consultation with the FCC, to establish "... nondiscrimination and network interconnection obligations" as a requirement for grant participants in the Broadband Technology Opportunities Program (BTOP). These obligations were released, July 1, 2009, in conjunction with the issuance of a notice of funds availability soliciting applications. The ARRA also required the FCC to submit a report, containing a national broadband plan, to both the House and Senate Commerce Committees which was released on March 16, 2010. Furthermore, legislation (H.R. 2902) authorizing the Federal Trade Commission, in consultation with the FCC, to review volume usage service plans offered by broadband providers was introduced June 16, 2009.


Date of Report: March 26, 2010
Number of Pages: 14
Order Number: R40616
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Distribution of Broadband Stimulus Grants and Loans: Applications and Awards

Lennard G. Kruger
Specialist in Science and Technology Policy

The American Recovery and Reinvestment Act (ARRA, P.L. 111-5) provided $7.2 billion primarily for broadband grant and loan programs to be administered by two separate agencies: the National Telecommunications and Information Administration (NTIA) of the Department of Commerce (DOC) and the Rural Utilities Service (RUS) of the U.S. Department of Agriculture (USDA). 

There are two rounds of ARRA broadband funding. The first funding round was announced with the release of a Notice of Funds Availability (NOFA) on July 1, 2009. On September 9, 2009, NTIA and RUS released data on applications received during the first round application period. In total, over 2,200 applications requested nearly $28 billion in funding for proposed projects reaching all 50 states, five territories, and the District of Columbia. The total amount of federal funding requested was seven times the amount available in the first round. 

RUS first round awards are now complete. NTIA awards, while mostly complete, will continue to be announced on a rolling basis through April 2010. The second funding round NOFAs were released on January 15, 2010. Second round awards are expected to be announced starting in June 2010. The ARRA mandates that all funding must be awarded by September 30, 2010. 

This report focuses on the distribution of round one ARRA broadband funding with respect to project category, program, technology deployed, state-by-state distribution, and other factors. Based on first round applications and awards data, current as of April 5, 2010, the following observations can be made: 

• To date, the amount of funding awarded in the first round is about half (53%) of the available funding levels published in the first round NOFA. 

• Of all broadband infrastructure projects awarded, middle mile projects have received more funding than last mile projects (55% vs. 45% of total funding for infrastructure). 

• Of all broadband infrastructure funding, most (69%) has been awarded to projects serving predominantly rural areas. However, a breakdown of the project categories awards data shows that while all last mile projects have been rural, the majority of middle mile funding has been awarded to projects serving nonrural areas. 

• Nonremote last mile rural projects were funded more heavily than remote area last mile rural projects. 

• Public notice responses were filed by existing service providers for 71% of all funded first round infrastructure projects. Public notice responses were filed for 91% of all middle mile projects and 69% of last mile nonremote projects. By contrast, one out of the thirteen (8%) last mile remote area applications received a public notice response from an existing service provider. 

Congress will likely continue to monitor how the stimulus broadband grants and loans are being distributed. To the extent that Congress may consider whether certain broadband grant and loan programs should be expanded, the funding patterns and trends that emerge during rounds one and two could provide insights into whether such programs should be expanded, and if so, how these or similar programs might be fashioned within the context of a national broadband policy.


Date of Report: April 5, 2010
Number of Pages: 23
Order Number: R41164
Price: $29.95

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Broadband Infrastructure Programs in the American Recovery and Reinvestment Act

Lennard G. Kruger
Specialist in Science and Technology Policy

The American Recovery and Reinvestment Act (ARRA, P.L. 111-5) provided $7.2 billion primarily for broadband grant programs to be administered by two separate agencies: the National Telecommunications and Information Administration (NTIA) of the Department of Commerce (DOC) and the Rural Utilities Service (RUS) of the U.S. Department of Agriculture (USDA). Of the $7.2 billion total, the ARRA provided $4.7 billion to establish a Broadband Technology Opportunities Program (BTOP) at NTIA, and $2.5 billion as funding for broadband grant, loan, and loan/grant combination programs at RUS. Broadband grants and loans funded by the ARRA are competitive and applicants must apply directly to NTIA and RUS. The NTIA appropriation also included $350 million for a national broadband inventory map, funding for the Broadband Data Improvement Act (P.L. 110-385), and funding to be transferred to the Federal Communications Commission (FCC) to develop a national broadband plan. 

The unprecedented scale and scope of the ARRA broadband programs, coupled with the short time frame for awarding grants, presents daunting challenges with respect to program implementation as well as Congressional oversight. Congress is closely monitoring how equitably and effectively broadband grants are allocated among states and the various stakeholders, and to what extent the programs fulfill the goals of short term job creation and the longer term economic benefits anticipated from improved broadband availability, access, and adoption. A continuing issue is how to strike a balance between providing federal assistance for unserved and underserved areas where the private sector may not be providing acceptable levels of broadband service, while at the same time minimizing any deleterious effects that government intervention in the marketplace may have on competition and private sector investment. 

There are two rounds of broadband funding. The first funding round was announced with the release of a Notice of Funds Availability (NOFA) on July 1, 2009. The NOFA contained eligibility requirements, application rules and procedures, and evaluation criteria for BTOP at NTIA and for the Broadband Initiatives Program (BIP) at RUS. In the first round, NTIA and RUS received over 2,200 applications requesting nearly $28 billion in funding. 

The second round NOFAs for BTOP and BIP were released on January 15, 2010. With respect to infrastructure, BTOP will fund middle mile projects, while BIP will focus primarily on last mile projects. Significant changes made from the first round NOFA, include: simplifying application procedures, reorienting BTOP infrastructure grants towards comprehensive community middle mile projects, eliminating the BIP remote last mile project category, and adding a separate BIP Satellite Project category.



Date of Report: March 26, 2010
Number of Pages: 25
Order Number: R40436
Price: $29.95

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U.S. National Science Foundation: Experimental Program to Stimulate Competitive Research (EPSCoR)

Christine M. Matthews
Specialist in Science and Technology Policy

The Experimental Program to Stimulate Competitive Research (EPSCoR) of the National Science Foundation (NSF) was authorized by Congress in 1978, partly in response to concerns in Congress and the concerns of some in academia and the scientific community about the geographic distribution of federal research and development (R&D) funds. It was argued that there was a concentration of federal R&D funds in large and wealthy states and universities, and that the continuation of such funding patterns might ensure a dichotomy between the "haves" and "have-nots." 

EPSCoR began in 1979 with five states and funding of approximately $1.0 million. Currently, EPSCoR operates in 27 states and the Commonwealth of Puerto Rico and the U.S. Virgin Islands. To date, the NSF has invested approximately $920.0 million in EPSCoR programs and activities. When established, it operated solely in the NSF. EPSCoR was expanded in the mid 1980s and early 1990s; by 1998, seven other agencies had established EPSCoR or EPSCoR-like programs. 

EPSCoR is a university-oriented program, with the goal of identifying, developing, and utilizing the academic science and technology resources in a state that will lead to increased R&D competitiveness. The program is a partnership between NSF and a state to improve the R&D competitiveness through the state's academic science and technology (S&T) infrastructure. Eventually, it is hoped that those states receiving limited federal support would improve their ability to compete successfully for federal and private sector funds through the regular grant system. 

Some have questioned the length of time states should receive EPSCoR support. It continues to be called an experimental program after 28 years, and observers have noted that no state has yet to graduate, or leave the program. In August 2005, the NSF's Committee of Visitors (COV) released a review of the EPSCoR program for the period FY2000 through FY2004. One of the issues in the review was centered on determining when states would become independent of EPSCoR resources. The COV acknowledged that graduation/progression from the EPSCoR program is a "challenging" issue and it has become necessary to revisit what it means to graduate from the program. 

The NSF FY2011 budget request proposes $154.4 million for EPSCoR activities, approximately $7.3 million (4.9%) above the FY2010 estimate of $147.1 million. The FY2011 request supports a portfolio of three complementary investment strategies—research infrastructure ($111.9 million), co-funding ($41.0 million), and outreach ($1.5 million). NSF indicates that approximately 65% of the funding for EPSCoR is to be used for new research awards in FY2011. The remaining is to be used to support grants made in previous years. This report will be updated periodically.


Date of Report: March 26, 2010
Number of Pages: 14
Order Number: RL30930
Price: $29.95

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Tuesday, April 6, 2010

U.S. Initiatives to Promote Global Internet Freedom: Issues, Policy, and Technology

Patricia Moloney Figliola, Coordinator
Specialist in Internet and Telecommunications Policy

Kennon H. Nakamura
Analyst in Foreign Affairs

Casey L. Addis
Analyst in Middle Eastern Affairs

Thomas Lum
Specialist in Asian Affairs

Modern means of communications, led by the Internet, provide a relatively inexpensive, open, easy-entry means of sharing ideas, information, pictures, and text around the world. In a political and human rights context, in closed societies when the more established, formal news media is denied access to or does not report on specified news events, the Internet has become an alternative source of media, and sometimes a means to organize politically. 

The openness and the freedom of expression allowed through blogs, social networks, video sharing sites, and other tools of today's communications technology has proven to be an unprecedented and often disruptive force in some closed societies. Governments that seek to maintain their authority and control the ideas and information their citizens receive are often caught in a dilemma: they feel that they need access to the Internet to participate in commerce in the global market and for economic growth and technological development, but fear that allowing open access to the Internet potentially weakens their control over their citizens. 

Legislation now under consideration in the 111th Congress would mandate that U.S. companies selling Internet technologies and services to repressive countries take actions to combat censorship and protect personally identifiable information. Some believe, however, that technology can offer a complementary and, in some cases, better and more easily implemented solution to some of those issues. They argue that hardware and Internet services, in and of themselves, are neutral elements of the Internet; it is how they are implemented by various countries that is repressive. Also, Internet services are often tailored for deployment to specific countries; however, such tailoring is done to bring the company in line with the laws of that country, not with the intention of allowing the country to repress and censor its citizenry. In many cases, that tailoring would not raise many questions about free speech and political repression. 

This report provides information regarding the role of U.S. and other foreign companies in facilitating Internet censorship by repressive regimes overseas. The report is divided into several sections: 

• Examination of repressive policies in China and Iraq, 

• Relevant U.S. laws, 

• U.S. policies to promote Internet freedom, 

• Private sector initiatives, and 

• Congressional action. 

Two appendixes describe technologies and mechanisms for censorship and circumvention of government restrictions.


Date of Report: April 5, 2010
Number of Pages: 26
Order Number: R41120
Price: $29.95

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Monday, April 5, 2010

The Copyright Registration Requirement and Federal Court Jurisdiction: A Legal Analysis of Reed Elsevier, Inc. v. Muchnick

Brian T. Yeh
Legislative Attorney


Although an author need not register his or her work with the U.S. Copyright Office to obtain copyright protection, registration is a statutory prerequisite to bringing suit for infringement of the copyright, as mandated by 17 U.S.C. §411(a). The question in Reed Elsevier, Inc. v. Muchnick is whether this section of the Copyright Act restricts the subject-matter jurisdiction of the federal courts over copyright infringement claims involving unregistered works. 

The plaintiffs in Reed Elsevier, consisting of individual authors and trade groups representing authors, brought a class action lawsuit against several publishers when those publishers licensed the authors' articles for print publication but failed to secure an additional license to reproduce them electronically. The Supreme Court had earlier affirmed the plaintiffs' right to control electronic reproduction of their copyrighted works in its 2001 opinion New York Times, Co. v. Tasini. After this opinion, the district court in Reed Elsevier referred the parties to mediation. After more than three years of negotiations, the parties reached an $18 million agreement that sorted the plaintiffs into three categories based, in part, on whether or not their copyrights had been registered. The settlement assigned a different damages formula to each category, with owners of registered copyrights receiving more than owners whose copyrights were unregistered. 

Several freelance authors who fell within "Category C" (composed of unregistered copyrights) objected to the settlement agreement, arguing that the settlement was unfair and inadequate because they were paid too little. Proponents of the settlement responded that "Category C" claimants were treated fairly because, as owners of unregistered copyrights, they would normally be barred from bringing infringement suits at all under 17 U.S.C. §411(a). The district court granted final class certification and approved the settlement in September of 2005. The objectors appealed the district court's decision to the U.S. Court of Appeals for the Second Circuit. Before oral argument, the Second Circuit asked the parties to address whether the district court had subject-matter jurisdiction over claims concerning the infringement of unregistered copyrights, or whether §411(a) restricted the court's jurisdiction. 

Both the authors and publishers argued that §411(a) is not jurisdictional in nature. However, a divided panel of the Second Circuit disagreed, holding that the requirement of copyright registration prior to an infringement suit is jurisdictional and therefore, because many of the plaintiff's copyrights were unregistered, the district court lacked the power to certify the class and approve the settlement. The publishers appealed the appellate court's decision to the U.S. Supreme Court. 

In a unanimous decision issued on March 2, 2010, the U.S. Supreme Court reversed the judgment of the Second Circuit panel. The Court characterized the Copyright Act's registration requirement as a claim-processing rule rather than a jurisdictional condition. Therefore, a copyright holder's failure to satisfy the statutory registration requirement does not deprive a federal court of jurisdiction to adjudicate his copyright infringement claim. While the Supreme Court held that the Reed Elsevier district court possesses the authority to approve the settlement between the authors and the publishers, the Court offered no opinion on the fairness, reasonableness, or adequacy of the settlement. On remand, the court of appeals must now consider the settlement's merits and decide whether to uphold the district court's approval of the settlement. The Supreme Court also expressly declined to decide whether §411(a) is a mandatory precondition to suit that district courts may or should enforce sua sponte by dismissing copyright infringement claims that involve unregistered works.

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Date of Report: March 18, 2010
Number of Pages: 14
Order Number: R40944
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Sunday, April 4, 2010

Use of Trademarks as Keywords to Trigger Internet Search Engine Advertisements

Brian T. Yeh
Legislative Attorney

The use of trademarks in connection with Internet-based advertising has sparked disputes between trademark owners, advertisers, and Internet search engine operators over whether such activity violates federal trademark law. Specifically, trademark owners have expressed concern over the sale of their trademarks by Internet search engines to third parties that want to have "banner" advertisements, "sponsored links," or "sponsored results" appear on a search results Web page when those trademarked words are entered as a search query. For example, the shoe company Reebok may purchase the trademark "Nike" from the Internet search engine Google as a "keyword." If a consumer conducts a search for the term "Nike" on Google's website, the consumer would be presented with paid advertisements for Reebok's products in the right-hand margin of the Web page immediately next to the search results for Nike's shoes and apparel. 

Whether the use of trademarks as "keywords" that trigger such online advertisements constitutes actionable trademark infringement is a question that has been the subject of much litigation over the past five years. However, to date there have been very few final court rulings on the legality of keyword advertising; most cases have involved rulings from judges on procedural pre-trial motions filed by the parties. The primary issue for these courts was not whether the trademark owner would prevail in a lawsuit brought against a keyword seller (search engines) or keyword buyer (advertisers), but whether the plaintiff was entitled to proceed to trial to offer evidence in support of the trademark infringement claim. For example, most courts have had to answer a threshold question about whether a trademark owner would be able to overcome defense motions to dismiss the case for failure to state a claim for relief, on the grounds that the use of a trademark as a paid keyword is not a "use in commerce" within the meaning of the Lanham Act. Until recently, there was a split in opinion among the federal courts in different circuits concerning this question. The April 2009 decision of the U.S. Court of Appeals for the Second Circuit in Rescuecom Corp. v. Google, Inc. resolved the circuit conflict in favor of a determination that the use of a trademark as a keyword trigger (or facilitating such use) does constitute a "use in commerce" for purposes of the Lanham Act. However, establishing that a defendant uses another's mark in commerce is only one element of the infringement claim; for a violation of the Lanham Act to be found, such use must be likely to cause consumer confusion or mistake as to the origin, sponsorship, or approval of the goods or services offered by the defendant. So far, there is a lack of judicial consensus on this second element, and thus the legality of using trademarks for keyword-triggered advertising remains unsettled. 

This report provides a summary and analysis of judicial opinions that have developed the current state of trademark law governing keyword-triggered advertising.


Date of Report: March 22, 2010
Number of Pages: 18
Order Number: R40799
Price: $29.95

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