Judge dismisses Pop-up Ad Case

[Timber Loftis]

My firm's corporation/securities department publishes a weekly newsletter. I found this gem in there today:
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Internet and Media Matters

Judge Dismisses Challenge to Internet Pop-Up Ads

U.S. District Judge Gerald Bruce Lee dismissed U-Haul's lawsuit against an Internet advertising company called WhenU that launched rival pop-up ads when customers would access U-Haul's web site. The Court held that the ads do not violate federal law because WhenU did not copy or use U-Haul's trademark or copyright material and also because users freely chose to download the pop-up software. If other jurisdictions reach the same decision
as Judge Lee, a potential hindrance for companies like WhenU, which provides software that triggers pop-up ads related to web addresses a customer visits, may be removed. (Reuters, 9/9/03)
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Oh, normally I'm not this anal, but since it comes from my firm's publication, and since I didn't cut/paste the warning from our website, let me mention this is for information/news purposes only and does not express a legal opinion.

[Luvian]

What is your opinion in this?

[Skunk]

Personally, I would see this as anti-competitive practice, there was a case in Europe recently where the outcome was different:

Dusseldorf awards damages for irritating pop-up ads
Germany's widely drawn unfair competition laws showed once again just how technologically neutral they are in this recent decision. The proceedings were between two competing websites offering erotic services involving telephone sex in combination with webcams.

What caused the problem was pop-up ads on the defendant's website Peepphone.info. Site visitors were presented with a prompt offering a download of software, but if they rejected this six to eight new windows appeared with constantly changing content. New windows appeared if any attempt was made to close these and the only way of bringing the process to an end was by closing the browser.

The unfair competition proceedings were brought by competitor Peepphone.de. They were not directly affected by this practice at all, but complained that Peepphone.info's annoying pop-up ads put unfair pressure on consumers, were anti competitive and thereby indirectly caused Peepphone.de damage.

The Court agreed with Peepphone.de's claims, and it seemed it was particularly because of the similarity of the domain names and the consequentially very tight competition between the two parties that it not only ordered Peepphone.info to desist from the practice but also awarded Peepphone.de 10,000 Euros damages for loss of business."

Now of course, there are differences between the two cases (not least that both domains shared similar names and that the pop-ups were not agreed to by the users) - but that said, given the tightness of EU law in general, I don't think that this would have made much difference other than to add clarity.


My personal feeling is that:

1. If the pop-up contains material located on the website that you accessed and does *not* contain any material based on a server not within that web-site, it is a perfectly legitimate usage of technology. (It may be irritating, but you did choose to go there - so you can't complain).
2. If the pop-up contains material *not* located on the website or automatically redirects you to another web-site, then it amounts to theft of bandwidth and is shady practice that ought to be banned.
3. Software like Gator, where the user agrees to advertising, represents a contract between the user and Gator to receive advertising - the user therefore has no right to complain about receiving advertising. However, if the advertising is directly linked to the exact url that a user types in (and for example) provides advertising to that site's competitors, I would call that anti-competitive practice. I also think that its highly unlikely that the user is aware of just how this works too - so it may be going one step beyond what was agreed to...

[ 09-13-2003, 06:11 AM: Message edited by: Skunk ]