Adverference?

Originally posted 2009-01-22 13:31:48. Republished by Blog Post Promoter

"The Interloper" (Norman Rockwell)

"The Interloper" (Norman Rockwell)

Working from home today after a bruising few weeks at work (see yesterday’s post!), I finally figured out what was going on with banner ads on my Internet browsing.  It raises an interesting question about Internet-related copyright and trademark law.

We use a filtered Internet service at home.  This way we know that not only do our children not have access to or permission to use the Internet, but even if they “happen to” get to it anyway, the worst of the worst is not coming into our house.  This is good for the grownups too, of course.

I recently adjusted the filtering level on the service and by virtue of that change the filter now happens to block banner ads.  This I did not mind, because many such ads, especially on Yahoo! mail, are quite garish and often rather gross and, frankly, indecent.  After this change I also started seeing a filtering message in the place of familiar, and relatively high-class, banner ads on my favorite “big” blogs that feature ads, such as Instapundit. It was not a great aesthetic experience but I got used to it.

A little while later I had the jarring experience of realizing that ads for charity auctions on behalf of orthodox educational  institutions — including a client of mine! — and solicitations for fundraising on behalf of penurious young couples in Israel were appearing on that very same site, one of the most popular English-language blogs in the world!  Well, I would say Glenn Reynolds is pretty Jewish-friendly, to say the least, but this struck me as pretty odd.

instapundit-jewish-after-all

Once I could focus on the question, however, I realized what was going on:  My filtering service was reselling the filtered advertising real estate to advertisers interested in the orthodox Jewish Internet user market!

This seems to raise some interesting questions, doesn’t it?  In many respects it reminds me of the now fairly well resolved issues related to “framing.”  At least one company involved in a similar service seems to think such a practice may raise some questions, some of which are discussed here.

It does seem somewhat problematic.  This not the case of an ISP taking it on itself to interfere with ads — I am paying the ISP to do that.  Now, if the ads that are approved and paid for are blocked at the user’s option, they’re blocked, and it does not seem that the website owner has anything to complain about.  I can pay you to go through my magazines and clip out or color over advertising before I read the thing.  But does the analogy work at the next level?  Do we really say that it’s okay if my magazine clipper offers to do the job at half price in return for pasting new ads that other people pay him to put into my magazine?

visit-our-advertisers-detail

"Visit our advertisers"?

Does it matter that, unlike a pasted-in homemade ad, the new ads look exactly as if they are “official”?  It’s not as if Glenn Reynolds or Pajamas Media (right) would mind a little fundraising on behalf of deserving charities or have a problem with ethnically-oriented business directories, but they may not elect to have them appear to be ads on their sites.  And then, of course, there’s the prospect of ads they would mind.  Is it okay because only the few subscribers to this service see the ads, or is it more akin to the problems raised by the Clear Play filter?

UPDATE:  But see:

Perhaps because ultimately 1-800 is unable to explain precisely how WhenU “uses” its trademark, it resorts to bootstrapping a finding of “use” by alleging other elements of a trademark claim. For example, 1-800 invariably refers to WhenU’s pop-up ads as “unauthorized” in an effort, it would seem, to establish by sheer force of repetition the element of unauthorized use of a trademark. Not surprisingly, 1-800 cites no legal authority for the proposition that advertisements, software applications, or any other visual image that can appear on a C-user’s computer screen must be authorized by the owner of any website that will appear contemporaneously with that image. The fact is that WhenU does not need 1-800’s authorization to display a separate window containing an ad any more than Corel would need authorization from Microsoft to display its WordPerfect word-processor in a window contemporaneously with a Word word-processing window. Moreover, contrary to 1-800’s repeated admonitions, WhenU’s pop-up ads are authorized-if unwittingly-by the C-user who has downloaded the SaveNow software.

1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400 (2d Cir. 2005).

UPDATE:  It’s also called “ad blocking,” and, as explained here, website owners in fact think it’s pretty cruddy.

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Author:Ron Coleman

I write this blog.

4 Responses to “Adverference?”

  1. James H
    January 27, 2009 at 12:40 pm #

    A question — do these replacement ads appear in the same window pane as Glenn Reynolds’ blog, or are they pop-up banners?

    I don’t know if I can point to a specific law, but there’s all kinds of troubling here. Among other things, it implies Glenn Reynolds’ endorsement of causes and organizations he might not support.

  2. James H
    January 27, 2009 at 10:03 pm #

    Does a real property analogy have any bearing here? Closest I can come up with is my owning a billboard, and some other guy papering his ad over the ad I sold when I’m not looking …

  3. January 29, 2009 at 11:56 am #

    This is a bit off-point, but your post got me thinking about the situation where a Domain Name Registrar or web host removes a web site in response to a DMCA or ACPA take down notice and then puts up a “landing page” with sponsored/ad-revenue generating links triggered by the trademark or copyright that as allegedly being infringed.

    Am I the only one who thinks this is just as “harmful” as trading off the taken down content or trademark?