Best of 2009: “Adverference?”

This was originally published on January 22, 2009:

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. It is a service marketed to orthodox Jews such as ourselves.  There are others, too, including the free, self-managed OpenDNS service.  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.

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?

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).

Originally posted 2009-12-22 17:19:46. Republished by Blog Post Promoter