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Do Third Party Pop-Up Ads Violate Copyright?
Posted by Ernest Miller on Thursday, August 15 @ 09:28:02 EDT Copyright
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.

 
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Re: Do Third Party Pop-Up Ads Violate Copyright? (Score: 0)
by Anonymous on Thursday, August 15 @ 17:29:02 EDT
I see your Galoob and raise you one Micro Star v. Formgen

Micro Star argues that the MAP files on N/I are a more advanced version of the [Galoob] Game Genie, replacing old values (the MAP files in the original game) with new values (N/I's MAP files). But, whereas the audiovisual displays created by Game Genie were never recorded in any permanent form, the audiovisual displays generated by D/N-3D from the N/I MAP files are--in the MAP files themselves. In Galoob, the audiovisual display was defined by the original game cartridge, not by the Game Genie; no one could possibly say that the data values inserted by the Game Genie described the audiovisual display. In the present case the audiovisual display that appears on the computer monitor when a N/I level is played is described--in exact detail--by a N/I MAP file.

....

[And on fair use:] But the fair use analysis in Galoob was not necessary and therefore is clearly dicta. More significantly, Nintendo alleged only contributory infringement--that Galoob was helping consumers create derivative works; FormGen here alleges direct infringement by Micro Star, because the MAP files encompass new Duke stories, which are themselves derivative works.

[and finds infringement]


Now plug MAI and Kelly v. Arribasoft into this, and it all becomes as clear as day, right?


[ Reply to This ]


Please provide links for your assertions... (Score: 1)
by anthony_dipierro on Thursday, August 15 @ 14:14:13 EDT
(User Info | Send a Message) http://slashdotsucks.com/
They have sued Gator alleging, among other things, that such pop-up ads constitute direct and contributory copyright infringement.
Where did you get this information from? I saw no where in the article where it said "direct and contributory"
How in the world is this an unauthorized display of the copyright holder's work?
Where did the plaintiffs claim it is?
Are the developers of the free version of Opera copyright miscreants because (release the lawyers) the browser includes ads?
Quite possibly.
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)?
Perhaps.
Derivative work? If pop-ads are derivative works ... aren't web pages derivative works of the browser developers?
More likely the audiovisual display is the alleged derivative work in this case.
Much of this case has already been decided in Galoob v. Nintendo. It seems to me like Gator Corporation can use the same defense as Galoob.


[ Reply to This ]


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