Since Google-Glass was first announced, it seems there has been no shortage of controversy surrounding the cutting-edge device. From privacy concerns to concerns the device would cause vision problems, a variety of potential problems and issues have arisen around the small, wearable computer featuring a heads-up display.

As of Thursday, August 15, 2013, Google holds a patent that may revolutionize the way advertisements are steered toward everyday consumers. Dubbed “Pay-Per-Gaze,” the system described would track the Glass device wearer’s line of sight and, if there happened to be a compatible advertisement in sight, provide additional pop-up information on-screen. Google would then charge the retailer an advertising fee based on the type of media and information provided and the length of time the wearer’s gaze lingered on a given advertisement.

Sounds simple, right?

Not so fast. This system can produce any number of potential issues between Google and the advertiser.

To begin with, imagine this situation. You are wearing your new ‘GoogleGlasses’ and are looking down a street in Los Angeles, or Nashville, or almost any major city in America. Ahead of you are a variety of billboards, all of which are “Pay-Per-Gaze” compatible. From a distance you can perceive multiple billboards. But which one are you looking at for the purpose of Pay-Per-Gaze?

Such a question becomes important when the question of cost and billing to retailers is addressed. Will Google charge all retailers whose ads can be seen at any given time? Or will Google make a single best guess, and charge the retailer whose advertisement Google thinks the GoogleGlass wearer is most likely examining? The potential for billing disputes and endless contract negotiations is huge in this area. Contracts between Google and retailers will probably resemble some kind of requirements contract on steroids: “There is no set number of looks you will get per month, but you will be charged for every look your ad receives.”

Further complicating this situation is Google’s plan for Phase 2. The patent calls for an additional layer of advertising — and charges — based on the emotional response of the device’s wearer. Eye-tracking software has been making more and more headlines lately, and its potential for use in advertising is already being explored. Google’s Phase 2 plan takes eye tracking to a whole new level, adding a layer of analysis focused on emotional response, using pupil dilatation as an indicator. Google will then charge advertisers based on the combination of the wearer’s directional gaze and motional response.

Phase 2 further increases the potential for disputes between advertisers and Google. There are a huge number of variables that can account for changes in pupil size, and emotion is only one of them. Legal battles will undoubtedly arise over the extent to which Google contributed to an enhanced advertisement. Or, perhaps a new kind of requirements contract will emerge, whereby Google cannot promise any certain number of gazes or emotions, but it will gladly charge an advertiser for any and all emotions Google perceives .

Of course, Google will find whatever way it can to push the technology, and its potential for profit, to the limit. This may well lead to more litigation, and, just possibly, a Supreme Court opinion on the definition of “gaze” or “look.” If we are really lucky, there may even be an entire linguistic treatise from Justice Scalia on the horizon.

–Michael Sellner

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2 Responses to Google Taking “Pop-Up” Advertising to a Whole New Level

  1. Andrew says:

    Very interesting post, Mike. And I agree with Zach that the advent of wearable technology will lead to many more changes in human behavior and the resulting legal issues that may arise for such use. While, as you pointed out, there are many issues that may arise between Google and the advertising company, one must presuppose that any company engaging in such a deal with Google would necessarily be represented by competent counsel, who will recognize these issues and address them in the resulting contract. It is vitally important, however, to do what you have done and to identify these problems beforehand. I agree with Zach that there must be some contract provision addressing the quality of the view of the billboard before such a fee is triggered to be paid by the advertiser. This issue also raises additional concerns not addressed here about the collection of user data and Google’s ability to connect this data to a user’s other online activities. In the end, this is a novel patent that Google will likely implement to the best of its ability given that in this world information equals money.

  2. Zachary Loney says:

    Interesting post. Just to spitball, but if I were write the contract, I would require that the visible advertisement be a certain percentage of the view as perceived by Google glasses and require a period of time that the view must remain on the ad before displaying more information.

    The first would help ensure that the ad is legible and reduce the chance that the eye angle could be viewing another image at the same time. The second requirement would ensure that it was an at least partially interested viewer and not a random gazer. It would also lessen the burden on the poor glass wearers as well.

    The advent of wearable technology will bring about amazing changes to our lifestyles and, as you noted, some incredibly interesting legal questions.