A study on the Haven rules of bidding rankings

Bidding rankings in order to advertisers, search engine service providers to create great value at the same time, because of the lack of relevant legislative constraints, coupled with the industry has not formed an effective self-regulatory norms, resulting in a lot of problems with the bidding rankings. With the popularity of search engine in the field of Internet application, search marketing has become the preferred network marketing method for the majority of small and medium-sized enterprises. Search engine is Netizen's first big network application, and the bidding ranking is the product and service provider (hereinafter referred to as "product provider") to use Internet advertising for marketing. Since November 15, 2008, the CCTV "news 30 minutes" broadcast of the "reporter investigation: false information through the network to spread Baidu bidding rankings are questioned" and 16th "reporter Survey: Search engine bidding rankings can make people fair access to information", bidding rankings are mentioned in various occasions, bidding rankings leads to too many problems. This article only deals with the research of the Haven rule in the tort problem of bidding rankings.

It is necessary to provide a reasonable system for standardizing bidding rankings so as to meet the needs of industrial development and protect civil rights and interests. Bidding rankings do provide advertising opportunities for other industries to create opportunities for development, the industry should be supported. However, due to the lag of legislation, the bidding ranking industry lacks an effective legislation, and the relationship between the bidder (the "Product provider"), the service provider and the right person is not clear. Because it is difficult to obtain the information of the bidder, the obligee often prefers to sue the service provider, and demands the latter to bear the tort liability for the large amount of infringement in the bidding rankings, but it is often difficult to get the support of the law. This is not conducive to the protection of rights and interests of the right people, but also not conducive to the orderly development of bidding rankings.

Technical analysis of bidding ranking

Ranked by the search engine services, because of the technical nature of the search engine to make their own technical. Before the legal analysis, it is necessary to analyze the technical principles involved in the bidding ranking from the angle of the technical principle of the search engine.

(a) "artificial intervention" in search engine algorithm is the basis of bidding ranking

Search engine According to the instructions of the search engine users, according to certain rules, automatically collect relevant information from the information network and collation, to provide users with a list of results to use the system. Search engine's core is its search algorithm, here to Baidu's search algorithm for example, the search engine algorithm to introduce.

Baidu Search Algorithm formula is: *lescore = (KW Usage Score * 0.3) + (Domain strength* 0.25) + (Inbound Link Score * 0.25) + (User Data * 0.1) + (Content Qualityscore * 0.1) + (Manual boosts) (Automated & Manual penalties)

namely: * score = (Related keyword score x0.3) + (domain name weight x0.25) + (external chain score x0.25) + (user data x0.1) + (content Quality score x0.1) + (manual Plus)-(automatic or manual reduction)

From the above, the factors that affect the score of the page and then the ranking of search results are "Related keywords", "domain Name", "Outside Chain", "User Data", "Content quality" and "manual intervention" six aspects. User input keyword, Baidu's server will be operating, according to the above formula for all the pages in the index database operation, to get their own scores, and finally by the size of the score will be related to the Web page sorted, returned to the user. Attention should be paid to the "manual intervention" factor: No "manual intervention" factors, search engines according to natural rankings return search results to users, because of "manual intervention" in the existence of the service provider to the product provider to provide advertising services are possible. On this basis, the bidding rankings can be formed.

(b) New developments in bidding rankings

The so-called bidding rankings, refers to the search results in order to obtain priority, advertisers, in accordance with the advertising to pay the number of advertising fees (bidding), determine the main link in the search results of the ranking of the system (ranking) mechanism. Advertisers Select a keyword, any user to search for the keyword, advertisers RELATED links will appear in the search results of the page, advertisers pay more fees, the link in the search results in the rankings, greatly increase the user click on the link.

Through the service provider's bidding ranking system, bidders and other bidders to bid, to obtain the right to use the keyword, when the user to search the keyword, the bid ranked link is displayed in the search results page, if the user is interested to click the link, then enter the bid ranking of the page, accordingly, The bidder will display their products to the user and publish the product advertisement. The key of bidding ranking is that the service provider can fine-tune the search engine algorithm results and affect the ranking of search results.

A new generation of bidding ranking system, such as Baidu Phoenix Nest, Google Adwords, allows the bidder to login the system after the choice of words, free bid for the relevant keywords to promote, without the participation of service providers, audit. In other words, the bidding ranking behavior is carried out by the bidder, the service provider only provides a neutral technology platform. This is the inevitable development of neutral technology.

Second, the auction ranking of the Advertising Act of infringement

The many legal relationships involved in bidding ranking determine the cognizance of tort liability and the establishment of "safe haven" rules. Service providers use their own research and development of search engine technology, to provide other people with advertising services and to obtain returns, the auction ranked people to promote their products, users also get information about the product. The application of this new technology should certainly be encouraged, but such activities shall not infringe upon the rights and interests of others; In order to guarantee the normal development of bidding rankings, it is necessary to build a "safe haven" rule which conforms to its actual situation and conforms to the law.

There is no conclusive conclusion whether the bidding rankings belong to advertisement in academia. Some people think that "PPC" itself is an advertisement, and some people think that the ranking does not constitute advertising. In the judicial practice, the court either avoids the judgment that "the bidding rank belongs to the advertisement", or it conflicts with the determination of the bidding rank.

Bidding rankings, and even the service provider to provide the entire search engine advertising service system, is the new technology products in the context of the novel form of advertising, of course, belong to advertising. Because, first of all, the "advertising Law," the second article stipulates: "This law refers to advertising, is the commodity operators or service providers to bear the costs, through a certain medium and form directly or indirectly introduce themselves to sell goods or services provided by commercial advertising." "Its core is advertisers" through a certain medium and form of direct or indirect introduction of goods or services. Secondly, from the whole process of bidding ranking, it is the bidding ranking system of the service providers to promote their designated links to the users, and then to show their goods or services to the users. Therefore, the bidding ranking is advertising.

The keywords involved in bidding rankings are not limited to the key words involved in traditional intellectual property rights. Any word in the field of human society, including other trademarks, trade names, images and even product names, and so on, as long as the bidders are willing to use, may be used as a bidding ranking system of keywords, advertising activities. Therefore, the most critical of the bidding rankings, that is, "key words." In short, any word that can be used to search words, statements, can become a bidding ranking system in the bidding keyword. Therefore, the infringing object here is closely related to the intangible property system which is based on "knowledge product" which Professor Wuhandong has advocated, which is more than intellectual property.

Professor Wuhandong suggested: "According to the category of intangible assets, in the study of civil law to establish a greater than the scope of intellectual property rights of the intangible property system, in order to contain all based on non-material form (including knowledge and experience, business reputation, business qualification form) of the rights arising." He specifically pointed out that the intangible property rights include the right to creative achievements, the right to operate and the operation of the right to credit three categories. Then, any related to the intangible property rights of the key words, as well as the common areas of keywords, are likely to be used by the PPC, bid in the ranking system bidding activities in the user's search results to display the former website, promote related products and services.

The reason is that the key words in the system of competitive bidding is related to the "intangible property system", because, in addition to the public domain vocabulary and other cases, the rights and interests of these keywords are related to the key words, others without permission in the bidding rankings and the conduct of commercial promotion, infringement of the rights and interests In this regard, the Court has made the relevant decision, that the key words related to the interests of the people concerned.

Therefore, on the basis of the theory of "intangible property system" advocated by Professor Wuhandong, whether it is related to the copyright, trademarks, patents and other relevant keywords (including product name), or other civil rights and interests such as the right to name, commercialization of the right to the image of the key words, or network hot words, the right to their exclusive right , you have the right to use these keywords yourself, perhaps others use them. These keywords are likely to be used in the bidding ranking system, which is not permitted in the bidding rankings in the commercial use of other people enjoy the exclusive right of the key words, of course, constitute infringement.