Battle of the Pop Ups and round one.....

[sarettah]

http://story.news.yahoo.com/news?tmpl=stor.../tech_popups_dc (http://story.news.yahoo.com/news?tmpl=story&cid=569&ncid=738&e=1&u=/nm/20030908/tc_nm/tech_popups_dc)

Judge Rebuffs Legal Challenge to Pop-Up Ads
2 hours, 46 minutes ago Add Technology - Reuters to My Yahoo!
By Peter Kaplan

WASHINGTON (Reuters) - A federal judge has rejected a legal challenge by truck and trailer rental company U-Haul to pop-up Internet advertisements, in a ruling that could embolden providers of the ads.

U.S. District Judge Gerald Bruce Lee, in a ruling handed down on Friday, dismissed U-Haul's lawsuit, which sought to ban software by Internet advertising company WhenU that launched rival pop-up ads when customers access U-Haul's Web site.

Lee said the ads don't violate the law because WhenU's software didn't copy or use U-Haul's trademark or copyright material, and because computer users themselves had chosen to download the pop-up software.

"While at first blush this detour in the user's Web search seems like a siphon-off of a business opportunity, the fact is that the computer user consented to this detour when the user downloaded WhenU's computer software from the Internet," Lee said.

[Toolz]

Okay I cannot being to describe how bad this is. Ushering in a whole new era of cockholsters, now there's no need to get your own traffic, I'm not going to describe how you can get a massive install on millions of computers but let's just say it's cheaper and easier than people think. Now you can have all the traffic you want siphon'd right off the pages, this sets SUCH a bad precedent I don't even know where to begin. You think companies like Gator were agressive before, this has just opened the floodgates, rather than pop a small 200x300 ad for Expedia on Travelocity now they can just pop a full screen ad and the user will see the intended target AFTER they make their purchase elsewhere. Same principal is being applied to adult by MANY, MANY cockholsters, sorry if I'm stealing your word Mike but it seems pretty appropriate here.

[PornoDoggy]

Odd decision ... badly reported, or badly litigated?

The statement "...because computer users themselves had chosen to download the pop-up software" is what catches my eye. I think it's far more likely that the downloaded popup software has been installed without anything resembling consent.

[Hooper]

U-Haul should have invested some money in a damages expert. Even if they won they wouldnt have gotten shit.

[Mike AI]

Originally posted by Toolz@Sep 8 2003, 07:10 PM
Okay I cannot being to describe how bad this is. Ushering in a whole new era of cockholsters, now there's no need to get your own traffic, I'm not going to describe how you can get a massive install on millions of computers but let's just say it's cheaper and easier than people think. Now you can have all the traffic you want siphon'd right off the pages, this sets SUCH a bad precedent I don't even know where to begin. You think companies like Gator were agressive before, this has just opened the floodgates, rather than pop a small 200x300 ad for Expedia on Travelocity now they can just pop a full screen ad and the user will see the intended target AFTER they make their purchase elsewhere. Same principal is being applied to adult by MANY, MANY cockholsters, sorry if I'm stealing your word Mike but it seems pretty appropriate here.
Ask 12 Clicks how easy it is to do....

This is a bad decision, bad law.... Hopefully someone litigates another case soon, and does it is successful. If not there will be a MAJOR war on the net.... It will be like the Gangs of NY but on the net!

[*KK*]

As the net evolves... it looks more like audio text every day.

[Mike AI]

Originally posted by *KK*@Sep 8 2003, 09:45 PM
As the net evolves... it looks more like audio text every day.


KK I know nothing about the history of audio text....

What lessons can it teach us?

[Hell Puppy]

This had to be poorly litigated. They obviously failed to educate the judges on the the deceptive aspect of gator.

The judges made their ruling based on the fact that users are willingly accepting gator onto their systems. Therefore they asked for whatever function it may perform.

They really missed the boat. Most users have no idea they are receiving gator, and if they do they have no idea what it does. This has potential to inspire a war so nasty that most users end up totally disabling client side scripting.

[Hooper]

Let me pose this theoretically... and I know something about this, because we recently wasted nearly 30k on damages experts, economists and lawyers when we planned to file a wave of suits against the manufacturers and purveryors of ad stoppers and popup blockers.

If you sell a popup blocker or ad blocker, is that any different than launching an ad on somebody elses site? My answer would be an absolute no. They are identical.

The advertiser/software manufacturer made money by taking away your money/eyeball/console/next click, right? Right.

What happened there was a violation of copyright law. They modified/added to your work as a whole, for profit, without your permission. Each violation carries a maximum penalty of $35,000USD. That is a maximum and INCLUDES punitive damages. And you must show ACTUAL damages to get that money.

Now, how do you show ACTUAL damages with something like this? You show that you went out of business because of them (or something close). But if these new popup ads launch and your revenue is steady or growing, or if it is declining but there are other explanations you're fucked and have no way of proving that this copyright violation actually did any damage, and accordingly have no way of proving that they owe you anything.

Now think like a scummey acacia. umm. err. .lawyer. It will cost you more than $35,000USD PER CASE to prosecute each producer of adware... and if you sue more than one, they can use the fact that you are pointing multiple fingers to even further prove that you dont know what actual damages they caused.

Basically here's the way it was explained to me. If these ads put you out of business and AFTER you're out of biz you can prove it. Then they might owe you a maximum of $35k.

It sucks, but it's no different in legal terms than wendys opening up across from mcdonalds and putting up big signs designed with no purpose but to take away their customers. Yeah, there are other little parts that it could potentially interfere with, potential contracts, existing contracts, but in that case you have to show conspiracy... in the end it's just sucks but it's part of biz i guess :(

JMHO

[Toolz]

Hooper I'll agree with your Wendy's vs McD's analogy to an extent, but what if Wendy's but a sign, BLOCKING McD's door with ads to their store? This is the effect of the adware that's taking place on the net. There's a lot of cockholster companies out there doing this RIGHT NOW, you never know who's gonna be popping ads over your Slut Bus sites tomorrow, hard to fight, but easy for everyone to discontinue doing biz with the schiesters who are making this so prevelant of a practice. I'm not naming any names today but you know who you are, hopefully good will triumph over underhanded rimjobbers.

[Hell Puppy]

I think the whole angle for this case was missed.

Hooper's arguement works. Same as a pop up blocker, if I, as a computer user, voluntarily and knowingly install a piece of software on my computer that will pop a window for XYZ Travel site on top of my existing browser everytime it detects I hit Joe Blow's travel site, then there's not a damned thing that Joe Blow can say about it.

I haven't violated his copyright or stolen his content, I've just opted for some different behavior than he intended of my software on my computer whenever his site is encountered. I see no legal basis to fight that.

But what everyone is missing with this case is that gator is not being voluntarily and knowingly loaded by users. It is being snuck in as plugins and as part of software that is being downloaded off the net. It is by all definitions a trojan horse.

[Toolz]

Originally posted by Hell Puppy@Sep 8 2003, 07:29 PM
It is being snuck in as plugins and as part of software that is being downloaded off the net. It is by all definitions a trojan horse.
I.E. Virus, why aren't they attacking them along the same lines you'd attack a disseminator of a virus?

[*KK*]

Originally posted by Mike AI+Sep 8 2003, 06:55 PM--></span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (Mike AI @ Sep 8 2003, 06:55 PM)</td></tr><tr><td id='QUOTE'><!--QuoteBegin--*KK*@Sep 8 2003, 09:45 PM
As the net evolves... it looks more like audio text every day.


KK I know nothing about the history of audio text....

What lessons can it teach us?[/b][/quote]
Honestly? How to get the fuck out when the getting is good unless you are one of the big 3-5.

Other than that, you are certainly welcome to draw your own conclusions.

[Hell Puppy]

Originally posted by Toolz+Sep 8 2003, 10:41 PM--></span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (Toolz @ Sep 8 2003, 10:41 PM)</td></tr><tr><td id='QUOTE'><!--QuoteBegin--Hell Puppy@Sep 8 2003, 07:29 PM
It is being snuck in as plugins and as part of software that is being downloaded off the net. It is by all definitions a trojan horse.
I.E. Virus, why aren't they attacking them along the same lines you'd attack a disseminator of a virus?[/b][/quote]
That's my point, they really should be. That arguement is more effective than any copyright arguement.

The only reason it's not viewed in the same light is that the software's intent isn't viewed as malicious by most.

[Toolz]

Well then the job of the defendent is going to be to determine malice. Never a cheap case to try. Anytime for that matter you try to challenge precedenct you're looking at a mightly costly trial.

[Hooper]

Originally posted by *KK*+Sep 8 2003, 10:43 PM--></span><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (*KK* @ Sep 8 2003, 10:43 PM)</td></tr><tr><td id='QUOTE'>Originally posted by -Mike AI@Sep 8 2003, 06:55 PM
<!--QuoteBegin--*KK*@Sep 8 2003, 09:45 PM
As the net evolves... it looks more like audio text every day.


KK I know nothing about the history of audio text....

What lessons can it teach us?
Honestly? How to get the fuck out when the getting is good unless you are one of the big 3-5.

Other than that, you are certainly welcome to draw your own conclusions.[/b][/quote]
Is that what happened in audiotext? I didnt find that in my local b&n so I have to rely on the local k&k to share :)

I would ask wig about a part of that though. Consolidation in new industries is inevitable.. cars, phones, watches, oil, fast food, probably audio text.. and i'd bet web porn too... is it predictable when the consolidation will begin and end in an industry?

We are definitely at an interesting time in this biz.. Im working on a new startup and looking for space.. so we got to tour the Dr. Koop offices today and it was fuckin amazing how much money they spend on their 40k+ sq feet in the nicest building in the city.. i wont go into details.. but it was no suprise that they went out of biz.. especially after seeing how much money they spend on the "idea room" and the "ambient conference room"..

I guess none of this is really related to the thread.. but in some ways all of it is. Dinosaurs die, the young grow, desperate dinosaurs use desperate tactics and wise older dinosaurs watch, wait & build armies with the young that survive adolescence.

Just watch.



Last edited by Hooper at Sep 8 2003, 11:06 PM

[Carrie]

Maybe a time will come when judges actually understand the internet and computers, rather than simply accepting what lawyers say as fact.
Any judge who had been plagued with tagalong software like Gator would have known the real issue in this case.

Or perhaps it's simply that Uhaul's lawyer didn't truly understand it himself and therefore didn't explain it well enough so that the judge could understand it.

[Hooper]

The problem with programs like gator is that they *do* require the user to accept the T&C... fine print yes.. but print none the less.. otherwise it would be a computer crime.

I'm so against the tactics... dont know why i feel like i'm arguing "pro adware" here :-/