An interesting legal battle has ensued with several
prominent publishers, including the New York Times Co. and Dow Jones & Co.
Inc., having filed a suit on the California based Gator Corp., alleging that
the Internet company's pop-up ads, which appear on their Web sites without
permission, violate trademark and copyright laws. Last year, the Interactive
Advertising Bureau had threatened to pursue action against Gator, calling the
group's practices "unethical and illegal.". Gator, in turn, countered
with a suit filed in federal court and the two parties reached an out of court
settlement.
Central to this dispute is the question of who owns the
desk top of your computer which you are now viewing. While the "Physical Desk
Top" belongs to you as the owner of the monitor/computer, do you own the
"Virtual Desktop" which is the visual display on the monitor?
According to the suit, when a surfer is viewing a web site,
appearance of the Ad served by Gator which hovers over the desktop is an
intrusion into their virtual space. Since it masks the Ads and contents which
are already there, it is alleged that it violates Copyright laws.
The interesting point is that the Ad pops up because of a
software installed in the user's computer. While we can debate whether Gator
is using ethical or unethical practices in getting the customers allow
installation of the software on their machines, once it is there with the
permission of the users, the pop up Ads that get displayed should rightfully
be treated as emanating from the user's system and not from the website which
it is visiting.
If however, the Ad is linked in some way to the
content of the web site either by "Categorization" or "user Profiling", then
there is a case for web publishers to raise a point of dispute.
One cannot however accept the view that the user's
desktop belongs to the publisher while visiting the website and any pop-up
window that interferes with the uninterrupted view of the content or ads is an
infringement of Copyright. Such a view may further complicate the issues
of Copyright in Cyberspace.
More importantly, if we look at ITA-2000, if the permission
of the user has not been obtained by Gator to install it's application in the
computer, it can actually be considered as an "Unauthorised Intrusion" and
""Introduction of Computer Contaminant". Indian sufferers of Gator application
which gets installed with little notice and is hard to remove, can there fore
claim damages upto Rs 10 million and seek imprisonment of Gator
officials for three years, if they are successful in proving the offence
in the Court.
It would be interesting to observe what views the American
Courts take in this regard.
Naavi
June 29, 2002
Related Article:
Publishers file suit against Gator over its pop-up ads
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