Doug Isenberg of GigaLaw has written a good article on a recent lawsuit that addresses questions of copyright and control over display of works on the Internet (Are Pop-Up Advertisements on the Web Illegal?).
The defendant, Gator Corporation, provides software to consumers that stores the consumer's personal information and automatically fills out many web forms (so one can avoid the hassle of typing their name and address frequently). The software also tracks the websites the user visits and provides pop-up ads for certain sites. The targeted sites do not appreciate this and consider Gator Corporation a parasite. They have sued Gator alleging, among other things, that such pop-up ads constitute direct and contributory copyright infringement. Apparently, proving pop-up ads is an unauthorized display of the copyright holder's work, as well as constituting an illicit derivative work.
The law in this area isn't clear, but it should be.
How in the world is this an unauthorized display of the copyright holder's work? What exactly are the plaintiffs claiming? Who is doing the display? Is Gator somehow copying the information and making its own display? Is it unauthorized because it is not displayed as the plaintiffs desire? If so, who "authorizes" particular forms of display? Are browser developers at legal risk if their display engine has some quirks that webpage owners don't like? Are the developers of the free version of Opera copyright miscreants because (release the lawyers) the browser includes ads? Is AOL-TimeWarner at risk for providing the "Gold-O-Lizer" which is, at best, mildly funny, but nevertheless takes a website like lead plaintiff Washington Post (Gold-O-Lized) and changes the background color to gold (not to mention adding an advertising bar to the top of the page)?
Derivative work? If pop-ads are derivative works ... aren't web pages derivative works of the browser developers? Are web agents derivative works? One could easily characterize Gator as a web agent. What if I, the user, prefer Gator's suggestions? Does that make me a copyright infringer? Are software services that provide contextual links to a page (for example, linking to almanac information when a country's name is present) scofflaws?
This is not to say what Gator is doing is right. There do appear a number of legitimate questions regarding possible trademark infringement, for example. However, to claim that what Gator is doing is copyright infringement is just plain wrong.