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  1. #1
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    Let's Not Kid Ourselves - It's About Consumer Control
    By Tom Hespos


    It seems we’ve gotten to the heart of the issue surrounding the latest round of lawsuits against behavioral marketing company Gator.

    In my opinion, the issue is one of publisher control over consumer’s desktops. It seems that publishers such as The Washington Post, The New York Times, Dow Jones and others involved in the suit think they should have ultimate control over how their websites are displayed to consumers. According to their lawyer, Terrence Ross, the display of pop-up ads in conjunction with a publisher’s content “alters the display of the website, which constitutes copyright infringement.”

    This view makes absolutely no sense to me. Why are these publishers picking on Gator exclusively? If they truly believe that they have ultimate control over how their content is displayed to consumers, then there is a laundry list of other companies they should be suing to protect that “right.” Here’s a list:


    • AOL Time Warner and other companies using exit ads - Go visit any one of Time Warner’s magazine properties’ websites. Then type www.nytimes.com into your browser’s address bar. Most likely, you will see a popup ad that appears over the nytimes.com website’s content, pitching a magazine subscription. If we think that pop-ups alter the display of a website, then maybe the publishers suing Gator should consider going after the world’s largest media company.

    • WhenU, Hotbar, Weatherbug and any other companies that distribute ad-supported software - Each of these companies is capable of delivering ads that might appear simultaneously with another publisher’s content. So why is Gator being singled out?

    • Any of the major Instant Messaging applications - We wouldn’t want the occasional ad or Instant Message from a buddy to interrupt consumers’ content experience, would we? After all, IM applications can serve ads. And windows can suddenly pop up over publisher content that contain messages from friends and relatives. We wouldn’t want that, would we?

    • Microsoft - It might interrupt the consumer’s content experience if, say, a window were to appear telling consumers that new updates to their operating system are available. A consumer might also boot a Microsoft Office application while they’re viewing a page of The Wall Street Journal and get a splash screen for Microsoft Word or Outlook or any one of several applications they might want to use.

    • Companies that distribute browsers - We all know that there are subtle nuances to the ways that different browsers display website content. What if a browser like Opera didn’t display content to the satisfaction of the publishers? Do the publishers involved in this lawsuit have an objection to the small Microsoft logo that appears in the upper right-hand corner of my Internet Explorer browser whenever I visit their sites?

    • Google and other search engines that cache content - If I want to look at a page that Google cached when its search spider crawled through a major newspaper site, I get Google branding up at the top of the page. Does this constitute copyright infringement?

    • Consumers themselves - I can surf many different websites simultaneously. If I have the front page of The New York Times open in one browser window and the front page of The Washington Post in another, right next to it, does that mean that I’ve “altered the display of the website?” If one of these sites spawns a popup ad that covers the content of the other window, is there a problem? [/list]

      The very existence of this lawsuit shows me that some content publishers simply do not get the fact that the consumer’s desktop is a multi-tasking environment. Consumers may use a variety of applications to process and display content in a variety of different ways. At any given time, there can be many ad elements competing for a consumer’s attention. If we want to tell consumers that they don’t have a right to determine how that content and advertising is processed, then we’re opening a giant can of worms. I would have no problem if website publishers wanted to amend their policies so that users surfing their websites would need to disable any other ad-supported application they’re using at the time. At least then, consumers would be able to make a choice as to whether viewing publisher content is worth having to do that. But that’s not the approach here.

      In any case, we should stop pretending that publishers have 100 percent of the attention of the consumers who visit their web pages. We know that to not be true. What’s happening here is that Gator is being crucified for what amounts to a very common practice on the web, one that has been a part of the web’s appeal since it became a commercially viable medium. Had this lawsuit been initiated in 1996, maybe these publishers would be suing PointCast for interrupting the display of their websites with their screensaver. Or maybe they would be suing any one of the financial publishers for their streaming quote tickers.

      One thing I’m sure of is that a ruling against Gator would be a ruling against consumer choice. It would set a dangerous precedent that could affect consumer’s rights to display content on their access devices in the ways that they like. And as I mentioned in last week’s column, being anti-consumer choice is not the way to go in the Internet business. After all, the web is the first consumer-driven medium.

      (c) MediaPost Communications 2002

      Haiko


      The secret of success is constancy of purpose. ~ Disraeli


  2. #2
    Defender of Truth, Justice and the Affiliate Way
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    [img]/infopop/emoticons/icon_rolleyes.gif[/img] [img]/infopop/emoticons/icon_rolleyes.gif[/img] [img]/infopop/emoticons/icon_rolleyes.gif[/img] [img]/infopop/emoticons/icon_rolleyes.gif[/img]

    Good grief! If you are going to put forth an argument on a subject, then at least put forth a relevant good argument.

    As far as his first 2 examples, they could have been sued just as easily as Gator. It's called setting a precedent and it's done in the legal arena all the time. If you have multiple enities engaging in a civil offense in the same manner, you decide using, using various criteria, who you are going after. Once you get a favorable ruling against one, then the others follow much more easily. You may not even have to go through the legal expenses of suing the others. INAL, and even I know that.

    As far as all the rest of his examples, it's comparing apples to oranges. All those are not triggered specifically by someone elses website or the content of the site with the sole purpose of deriving financial gains without compensating the infringed upon website. There is no benefit to the website. Though I do think that unfair business practices might have been a better tact to have taken than the copyright infringement route. But then again, INAL.

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  3. #3
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    The publisher has every right to restrict advertising on his domain. That's why it's called a domain and is ruled by the King or Queen of HTML residing there. Gator charges advertisers to popup those Ads, along side of revenue generated from pilfering commissions on users sales regardless of the domain owners consent. True carpetbaggers in every sense of the word.

    Gator pays no one for advertising space yet feels they can sell advertising to competing merchants seeking to interlope on the domain space of tohers. Not legit in the real world and therefore not legit in CyberSpace.

    WebMaster Mike

  4. #4
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    I wonder how much the author was paid by Gator to write that article. First, I don't see a singling out of Gator.

    Google has been successfully sued, and is considered by many legal authorities to be on the absolute edge of fair use with their caching of images in the Google image search. If their image search program had banner ads along with the cached images, google most likely would have lost the copyright battles.

    Most of the fair use decisions hinge on whether or not an action is causing financial harm to the publisher. You can argue that Google's image search brings traffic to hosting site. Google was forced by the courts to change the size of their cached popups.

    Sites that cached pages without the publishers banner ads, or displayed cached versions with their own banner ads were sued out of existence.

    On exit popups occur when a site is still in the control of a domain. I wish MS didn't include an on exit event, but that it entirely different from having code that executes when you have crossed the border and are in a different domain.

    This article is too poorly researched to warrant the electrons it was printed on.

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  5. #5
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    I actually agree with this article conceptually... I don't need anyone telling me what I can and cannot do with my PC. However, some of the arguements made are a little far fetched and detract from the key point...

    It is all about consumer control and they need to be responsible for their own actions or we'll end up as some quasi-communist state with everyone watching everyone.

  6. #6
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    Applesauce!

    The "justifications" of companies like eBates is that it is their customer. Well, lets put that into perspective ... first to install parasitic software and has no clue on how to delete the shoot.

    eBates (and other parasites) monopolizes the end user by continuously monetizing the link and exploiting the merchants' cookie ... sounds fair that two ex D.A.s .... Who did they represent ... Lucifer? It is the same shoot, but just a diffent smell! CRAPOLA!

    Haiko


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  7. #7
    Defender of Truth, Justice and the Affiliate Way
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    quote:
    It is all about consumer control and they need to be responsible for their own actions or we'll end up as some quasi-communist state with everyone watching everyone.


    Hmm, such a strong statement deserves some factual support as to how such a conclusion was derived and not just thrown out there.

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  8. #8
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    Why should we talk about "consumer control" when it's clear the parasites don't believe it themselves?

    If the parasites themselves had respect for consumer control, they would make it just as easy (and a lot more obvious!!!!) to uninstall them as it was to become infected by them in the first place. But do they?

    A couple of nights ago I helped a friend by cleaning a bunch of parasite crud out of his computer. He had no idea how it got there and no idea how to get rid of it. His browser window was infested with links to porn and gambling (in German, no less), and he was getting at least half a dozen popups for every page he tried to visit. It took over an hour to get rid of it all, and I'm not sure it's all gone yet ... Consumer control??? Baloney. That's utter vandalism.

    When the parasites start providing easy, obvious, COMPLETE one-click uninstalls, then and only then there might be some merit to their claim that they are on the user's computer because of the user's choice. Until then their talk about "consumer control" is hypocritical bafflegab.

  9. #9
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    Again, I don't support any of these services per se. And certainly my initial emotional reaction is strongly opposed, but I think we need to be careful of what we wish for...

    I prefer to let market economics and technology innovation work out these challenges as opposed to creating some laws or rules that unilaterally change the landscape in a way that might not be easy to undo if desired.

    End users, comsumers, customers, whatever you want to call them, they all need to be conscious of their online activity and what they install instead of someone deciding what software I can or can't load on my PC.

    For example, I like to use an anonymizer/cookie muncher. This service certainly kills any potential tracking by a number of authorities (CJ comes to mind). But that doesn't mean I believe anonymizer/cookie munchers should be outlawed, does it?

    I want freedom of choice on my PC. If I desire to implement self inflicted wounds by downloading file transfer utilities and viruses and such, that's my business as long as I do not break the law in doing so.

    Here's another way of looking at it... (quoting a friend of mine's recent opinion)

    "There is this quaint idea that a user might, by his or her own choice and with full knowledge, choose to select software for his or her own desktop.

    Of course, this does interfere with the notion of centralized control, wherein the "user" is a device that happily reads and consumes what the
    website delivers exactly as is, with no further analysis. Internet as yet another form of the boob tube.

    But then again, Big Brother does know best your security needs, right??

    I do think it is time for us to expand a bit on a countervailing view, otherwise we will all be
    back in the USSR."

  10. #10
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    Hypocritical bafflegab.

  11. #11
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    Ahem Elisabeth! And let's add that the software shows in the Start --> Programs list like normal software. One click uninstall that removes ALL of the software through the Windows interace. And finally the ability to access preferences in a normal fashion and turn off the software if the consumer so desires.

    Someone here finally told me to do a right click to find ebates to reach the preferences menu. Duh! But when I did that I click to disable it, all I got was a "page cannot be displayed" message and ebates continued to run. The only way I can turn it off is to do a ctrl + alt + delete and end task the program. And then you have to know what they call the exe file since it isn't labeled ebates! Most joe blow computer useres aren't going to know how to do all that.

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  12. #12
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    Mr. Pinehurst,

    Just because eBates uses TopMoxie (more than capable programmers) that does not justify the shit they put into an end users browser and right click options!

    This is about ethics and allowing us *all* to compete fairly not paying TopMoxie to disable such capabilities!

    Correct?

    Haiko


    The secret of success is constancy of purpose. ~ Disraeli


  13. #13
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    In a perfect world everyone would behave in a morally and ethical manner. But human nature dictates that is not the case. If people don't want government intervention, then there are some people who better clean up their acts. If the government becomes involved, you can thank these software companies for placing restrictions upon you. You can not except people to stand quietly by while money that is rightfully due them is taken away. To do so for fear of our country becoming a communist state, [img]/infopop/emoticons/icon_rolleyes.gif[/img] , can only lead to something just a bad, anarchy.

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  14. #14
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    quote:
    Of course, this does interfere with the notion of centralized control, wherein the "user" is a device that happily reads and consumes what the website delivers exactly as is, with no further analysis. Internet as yet another form of the boob tube.


    Gosh, some people complain because that's how the parasites seem to view users. As well, they're concerned about how much centralized control is being gained by some parasites ... and not gained by anything much resembling informed democratic processes.

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