MTP readers will recall that there is a long history of Internet advertising companies selling keywords under dodgy circumstances. We have some documentation of this practice–starting in 2003ish an affidavit from the “DownloadPlace” litigation documents that Google suggested artist names as Google Adwords. In the Google drugs non prosecution agreement case, Google representatives sold drug-related keywords in an FBI sting operation that resulted in a multi-year grand jury investigation and Google paying a $500,000,000 forfeiture.
But there’s a new bad boy on the block–Facebook. Not only has Facebook refused to get music licenses, Facebook is actually selling artist names as keywords. You can determine this yourself by “boosting” any post and setting the “Create Audience” filter to include artist names or song titles under “Interests”.
Here’s a few examples–my bet is that none of these are protected by any safe harbor (DMCA or CDA) as the selling of the artist names and song titles is likely not avoidable that way. Also–it’s important to note that all these artists and songwriters no doubt have heavily negotiated restrictions on the use of their names for advertising purposes so it’s not like they didn’t think about it.
Sam & Dave