Volume I

Issue : 6: September 18, 2003

• Three Privacy Studies Recently Released
• Florida Supreme Court Rules State Employees Are Not Required to Disclose Emails
• Over 27 Million Victims of Identity Theft In The Last Five Years
• CIRA s New Policies and Amendments Effective as of September 25 2003
• UKs Advertising Standard Authority Issues First Spam Decision
• Delivery of Pop up Ads Found to be Legal
• Harvard Publishes UDRP Guide
• U.S. Court of Appeals Upholds City Refusal to Include Link To Publication Critical of City Officials
• U.S. Recording Industry Takes Action Against Individual Users and Announces Amnesty
• U.S. Justice Department Files Injunction to Shut Down RxDepot
• First Case Under Amber Alert Legislation
• Ontario To Use Software to Meet Privacy and Access to Information Laws
• Alberta Court of Appeal Upholds Acquittal of Spammer
• FDA Warns Website Selling Canadian Pharmaceuticals

Home > Volume I > Issue 6: September 18, 2003 > Delivery of Pop up Ads Found to be Legal

Delivery of Pop up Ads Found to be Legal

A recent ruling of the U.S. District Court for the Eastern District of Virginia has found that the delivery of pop-up or pop-under advertising to web surfers surfing third party sites, including ads of competitors, did not constitute trademark or copyright infringement of the owners of such sites, violate unfair competition laws or the Virginia Business Conspiracy Act. In granting a motion for summary judgment in favour of WhenU, a distributor of free advertising software, Federal Judge Gerald Bruce Lee dismissed U-Haul International's complaint of interference with its own business. The ruling found that computer users had legitimately consented to the receipt of pop-up ads when the user had initially downloaded WhenU's computer software, which is often bundled with popular free software such as peer to peer applications like Kazaa or weather applications. The Court had initially dismissed U-Haul's charges in July, with the full opinion being filed on September 5.

Justice Lee noted that technically, WhenU's pop-up advertisement software resides on individual computers as a result of the "invitation and consent" of the individual computer user, and thus found that in the case of U-Haul, such advertisements do not "use, alter or interfere with U-Haul's trademarks or copyrights", even though pop-up advertisements for competing movers had appeared atop U-Haul's web pages. It is currently estimated that 30 million net users have WhenU's software on their desktops.

Notwithstanding this victory, WhenU still faces lawsuits from several other companies who are complaining about its practices. While this case is the first ruling in respect of pop-up advertising software, it will not be the last. A competitor adware company, Gator, which developed an Internet "helper" application that delivers pop-up and pop-under ads to web-surfers, is currently facing similar court challenges from the Washington Post, L.L. Bean and hotel chain, Extended Stay America. Gator had previously settled cases brought by several other newspapers in January, but the other lawsuits have been consolidated and will be decided by the Judicial Panel on Multidistrict Litigation in Washington, D.C.

In a related story, only days after the Virginia Court's opinion was issued, interMute, a software maker based in Massachusetts, introduced a specially created application known as SpySubtract, which scans computers for "spyware" or "adware" (including software from Gator) and automatically deletes them. "Gator Slayer" allows users to choose to delete Gator software anytime it is downloaded. There is likely a large financial incentive for spyware, as consumers soon discover that their initial consent to obtain the adware translates into the receipt of invasive pop-up ads that obscures websites, competes with their own services and even harvests personal information to be used to create spam mailing lists.

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