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Is this a familiar Web surfing scenario? You’ve just arrived at a site and another window appears: “Congratulations! You are the 10,000,000th visitor to this Web site. Click here to contact our prize department immediately.” Before you are able to inquire about your prize, another window pops up, telling you about an amazing wireless video camera. You start to consider what type of pranks you can pull on your friends with this tiny camera, when a third ad pops up, asking if you are looking for an old classmate. If you are tired of these intrusive encounters, you are not the only one. Gator Corp., a Silicon Valley online advertising company, is one of the most active purveyors of these so-called pop-up ads. And lots of big, powerful companies are out to wrestle Gator into submission. Most recently, Six Continents Hotels — a hotel chain that includes Holiday Inn, Crowne Plaza and InterContinental — sued Gator for copyright and trademark infringement, dilution, unfair competition, and interference with business contracts. A flock of media companies have also sued Gator on similar grounds. These plaintiffs believe that the pop-up ads are unlawfully interfering with the way they want to present their Web pages to the public. While what Gator is doing may be annoying — and is certainly aggressive — is it unlawful? The Copyright Act provides a copyright holder with exclusive rights to reproduce, adapt, distribute, perform, and display its creative works. Although courts have applied traditional copyright principles to the Internet, they have yet to expand the display right to cover this new medium. If they were to do so — as we will see below — the decision would not be easy to square with the circumstances concerning pop-up ads. Unlike a traditional copyright infringer, Gator does not copy, use or alter any portion of the visited Web page. Rather, it displays, in a separate window, an advertisement of a competing good or service on top of the visited page. Those who are not interested in the pop-up ad can easily close the window that contains it. Copyright owners believe that they control the right to display their Web pages in an unfettered fashion. But Internet users install Gator software on their computers knowing that pop-up ads are part of the Gator package. So are copyright owners or computer users in control of what is displayed on their monitor? If Gator loses on copyright grounds, it would tilt the balance toward copyright holders. It would call into question any attempt to disable or interfere with graphics on a Web page (even if such an attempt is done to boost the Web surfing speed of a computer). The decision also would create potential legal liability for manufacturers of software that generate pop-up windows that overlap the display of a visited Web page, such as appointment scheduling or instant messaging programs. Trademark law presents fewer problems when it is applied to pop-up ads. The Lanham Act grants the trademark holder an exclusive right to use a mark to identify its goods or services. A pop-up ad, therefore, would infringe upon the owner’s trademark if it deceived users into falsely believing that the Web site owner authorized the pop-up ads. In addition, the Web site owner could claim dilution, contending that the pop-up ads “tarnished” its trademark by creating false endorsement and by making the Web site unappealing to users. Many customers have been turned off by the intrusive pop-up ads, and some even avoided Web sites that regularly generate pop-up ads — not to mention those who have had bad experiences when multiple pop-ups crashed their computers. In sum, pop-up ads could cause substantial harm to the Web site owner, causing it to lose business opportunities, advertising revenue and goodwill. By implying endorsement that did not exist, the advertisements also might damage the owner’s established relationship with official advertisers. Although intellectual property rights holders are often eager to protect their property by taking legal action, other expensive measures exist. For example, some companies have relied on “sniffer” programs to enable their Web sites to determine whether programs such as Gator’s have been installed on the users’ computer. Ad-blocking programs are also widely available in the open market — to the great delight of individual users. Indeed, Earthlink, an Internet service provider, has focused its current promotional campaign on its pop-up blocker. Furthermore, as commentators have argued, pop-up ads might very well be a temporary phenomenon. At present, pop-up ads are able to capture attention because they are new and because consumers are curious and confused. Once consumers become more sophisticated, pop-up ads might no longer be able to attract as much attention as they used to, and the advertising model would therefore fail — even without litigation. A couple of years ago, consumers found banner ads intriguing and confusing. Very often, they would click on the banner ads, abandoning the sites they originally intended to visit. Today, however, most people routinely ignore banner ads as if they are just some misplaced graphics on a Web site. I am not a big fan of pop-up ads. I find them annoying. However, if the price of eliminating pop-up ads were to upset the current balance in intellectual property laws, I would rather close the ad window once in a while (or even once in a very short while). Luckily, legal action is not our only option. There is also something called technology. Peter K. Yu is acting assistant professor, and executive director of the intellectual property law program at Benjamin N. Cardozo School of Law, Yeshiva University. E-mail: [email protected]

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