Slimy SEO’s invade the Blawgosphere (Part II), plus questions about publicity, property, and Locke
UPDATE: Dan posted on the Crescat hijack as well as I was drafting this; see his post for interesting comments, and the same question of remedy. Please post general comments about remedy on his post; Lockean property theory and publicity on this one.
It’s happened again. Longtime blawgosphere residents will recall the fate that befell the original blogspot address of the Volokh Conspiracy. When the Conspiracy moved to Volokh.com, the blogspot address was let go. And immediately, a Search Engine Optimization site snapped it up.
Why? Because, with a high number of quality incoming links, the old Volokh website (at blogspot) had a high google rank. (In fact, the old Volokh Conspiracy website — which has been out of commission for years now — still has dozens and dozens of inbound links, according to Technorati.) The invasion by the SEO is parasitism, pure and simple. Eugene Volokh (and co-conspirators) built a site popular enough to draw numerous links; now, an online claim jumper benefits from Eugene’s work.
Alas, it seems that the same fate has befallen the merry band of Crescateers, once the proud owners of a .org address, now housed in new digs at Crescatsententia.net. Will Baude and friends built a strong blog, one with enough incoming links to give it a high google pagerank of seven. Alas, it too has now seen its domain name coopted by the forces of darkness.
We’ve updated our blogroll to reflect the new address. (If you’ve blogrolled Crescat, be sure to update yours as well.) Without the details of the heist, I really can’t speak as to details of remedies. And of course, any number of potential claims could be contractual and highly fact specific. If Will’s hosting company was asleep at the wheel, perhaps some sort of claim lies against them.
On the other hand, there are potential theoretical questions here that don’t rely on contractual specifics. In particular, suppose that Will just genuinely forgot to renew his domain, and someone else snatched it up. Could Will make a claim then, and on what grounds?
Is there a likelihood of confusion? Probably not, as long as they take down the old website. But does Will have a moral right to the product that he’s built at Crescat Sententia? (Should he?) Is there something akin to a right-of-publicity argument here? That is, Madonna builds her image and so has (with some limits) the sole right to decide how it is exploited. Will Baude (and when I say Will, I mean to include his co-bloggers as well) built Crescat — so should he have the right to decide how it is exploited?
The Lockean theory of labor has long been used as a justification for the right of publicity. The fruits of one’s labor become one’s property, this theory goes; the fame of a public figure is the fruit of her labor and should be treated as her property. This justification has also been criticized. Critics point out that other people buy Madonna’s records; the public participates in the creation of her image; perhaps, then, the argument goes, she should not have the sole right to exploit it.
Do similar arguments apply here? Will Baude was able to form a highly ranked page in large part because of his own labor. On the other hand, there is something to the critique that fame is not solely a product of one’s own labor. Certainly Will could not control the incoming links from Volokh and Co-Op and Instapundit and everywhere else — those are, in some sense, like the customers who buy Madonna’s records.
Does that undercut any Lockean arguments that Will might make (to a publicity-like right to defend his old web domain and control how it is exploited)? Is such an argument open to Nozick’s critique of Locke — that to allow Will to do this would be to allow him to mix his tomato juice with the ocean, and then claim the ocean as his property?
On the one hand, strong Lockean arguments made by rich celebrities in the publicity context often seem overwrought. (Critics like Micheal Madow rightly point out that celebrity is the product of more than just one person’s labor.) On the other hand, Lockean arguments would support Will’s claim against noxious claim jumpers. (It is hard to come up with a satisfying account of why we would want to encourage such unsavory behavior).
Here’s one potential difference between the two: Critics of Lockean labor theory in the celebrity publicity context (such as Madow) suggest that the public is a co-laborer in the creation of the commodity, and thus equally entitled to exploit the value of the commodity created. Madonna’s persona is the creation of labor by both Madonna herself and the public, and so she should not be able to assert a claim against the public for use of that image — so the argument goes.
Even if we accept that idea, we may still be in favor of a Lockean claim by Will Baude. The value of Crescat is the product of joint labor by Will Baude and the legal blogosphere — Glenn Reynolds, Eugene Volokh, Orin Kerr, and so forth. Perhaps, if one accepts the critics of Lockean justification for publicity rights, Will should be barred from bringing any sort of Lockean claim against any of those co-laborers.
However, the slimy SEO firm in question never participated in that labor process. So even if we are doubtful of the Lockean justification for publicity rights as used in general — by a celebrity against a member of the public who might plausibly assert a claim of co-labor — we may still feel that such rights should be available for Will to use against a true interloper like an SEO firm seeking to hijack his blog.