Post on 27-Mar-2015
Copyright Issues and AdwareCopyright Issues and Adware
Mark D. RobinsNixon Peabody LLP
Practices at Issue – SaveNow (WhenU.com)
Practices at Issue – SaveNow (WhenU.com)
• Ad placement/sales process:– Software bundled with other programs– Pulls pop-up ads from directory– Advertisers buy right to have ads displayed
based on topical categories– No guarantee that ad will be displayed with
any particular web site
Practices at Issue – SaveNow(WhenU.com)
Practices at Issue – SaveNow(WhenU.com)
– Program correlates categories of ads to:o Search phraseso Web addresseso Keyword algorithms
– User’s activity is matched to category from which ads are pulled for display
– WhenU sells based on impressions, clicks, or purchases
Practices at Issue – SaveNow (WhenU.com)
Practices at Issue – SaveNow (WhenU.com)
• User perceptions:– Pop-up or pop-under format– Utilizes Windows environment– Ad appears in WhenU branded window– Notice: “This is a WhenU offer and is not
sponsored or displayed by the website you are visiting. More. . .”
– Prior version: “A WhenU offer – click? for info.”
Practices at Issue – SaveNow (WhenU.com)
Practices at Issue – SaveNow (WhenU.com)
• User perceptions:– Must click acceptance of agreement to download– Agreement: “SaveNow ads/offers are delivered
independently from the site the user happens to be visiting when they see a SaveNow ad/offer and are not endorsed or affiliated with anyone other than WhenU.com”
– For brief period, one program could be received without assent if browser settings were below Microsoft security recommendations
Copyright – Pop-Up AdsCopyright – Pop-Up Ads
• Display Right– SaveNow does not show users plaintiffs’ web
sites– Plaintiffs do not have right to restrict display of
web sites to instances of unobstructed accesso Such a right would not be consistent with Windows
environment
– Rejection of analogy to framing/in-line linking where code on one web page causes another web page to be accessed and displayed
Copyright – Pop-Up AdsCopyright – Pop-Up Ads
• Derivative Work– WhenU window is distinct occurrence from
plaintiffs’ web sites– No alteration of HTML code of plaintiffs’ web
sites– Opening new window cannot be copyright
infringement
Copyright – Pop-Up AdsCopyright – Pop-Up Ads
– Alteration deemed too transitory to satisfy “fixation” requirement for derivative work
o Analogy to device that varies play of video game
– Temporarily obscuring portion of web site does not change it – no recasting, transforming, or adapting
– Analogy to cases involving retransmissions of works in altered form in violation of licensing restrictions rejected
New York, NY • Rochester, NY • Boston, MA • San Francisco, CA • Washington, DC Albany, NY • Buffalo, NY • Garden City, NY • Hartford, CT
Manchester, NH • McLean, VA • Orange County, CA • Philadelphia PA • Providence, RI