Results 1 to 14 of 14
  1. #1
    Merchant Linda's Avatar
    Join Date
    January 18th, 2005
    Location
    TN, USA
    Posts
    1,030
    http://www.theregister.co.uk/content/23/28027.html

    Gator bites back, sues suer
    By electricnews.net
    Posted: 11/11/2002 at 07:53 GMT


    On-line ad company Gator has bitten back against recent lawsuits by launching its own case against a business that has complained about its pop-up ads.

    US-based Gator Corp provides free software to consumers that enables them to store information such as passwords for logging onto sites. The catch however is that users of its software must agree to receive ads in return and when they visit certain Web sites a code is triggered that inundates them with pop-up ads. And, very often, the owners of these sites have not agreed to display these ads.

    This has led to several companies such as the Washington Post and United Parcel Service (UPS) suing Gator for infringing on their sites. UPS, for instance, charged that it led to its competitors' ads appearing on its Web site.

    However, now Gator has decided to turn the tables and has set the lawyers on Extended Stay America Inc to ensure that Extended cannot block its ads, a report on Bloomberg claims. Gator's argument is that consumers should be able to decide what they see on the Web and not Web site owners. It said in its suit that Extended Stay America has no right to prevent computer users from choosing to get its software and "viewing separate works, comprising advertising on that user's own computer screen, even when other works share the screen."

    Gator has declined to comment about the case, but on-line advocacy group, Electronic Frontier Foundation, which is considering supporting Gator's case, has said the issue is about who controls a computer when people go on-line. "Is it you, or is it the company whose Web site you happen to be using?" asked Fred von Lohmann, a senior staff attorney for the Foundation. He told Bloomberg that if Gator loses, Web site owners would have "far more control over the end user than is appropriate."

    Shenda Loughnane, managing director of Dublin based interactive ad agency, Ican, disagreed. She told ElectricNews.Net that Gator was effectively piggybacking on some sites without their permission and was not following standard rules for the use of pop-up ads.

    "I have somehow had my computer 'infected' by Gator and it churns up pop-ads all the time, which is very irritating. Pop-up ads should be frequency capped and targeted at the site's audience or area of interest, and Gator does neither. It's very negative from a consumer's point of view and is something that a company like Ican does not want to see," remarked Loughnane.

    She added that it could be argued that Gator is trespassing on sites that have not asked for its pop-up ads. Although she was not sure what could be done about the situation, she commented that consumers should realise that nothing is for free on the Internet anymore.

    In its suit, Gator is asking for a ruling that it does not violate the rights of Web site operators. It is also appealing an earlier ruling that ordered it to stop putting pop-up ads on certain sites.

    © ElectricNews.Net

  2. #2
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
    Join Date
    January 18th, 2005
    Location
    St Clair Shores MI.
    Posts
    17,328
    They have balls and lot's of our commissions to pay their attornies. hope they loose this one too and get run off the Internet.

    _______________
    "Gator's argument is that consumers should be able to decide what they see on the Web and not Web site owners. It said in its suit that Extended Stay America has no right to prevent computer users from choosing to get its software and "viewing separate works, comprising advertising on that user's own computer screen, even when other works share the screen."
    _____________________

    Tell thta spin to the TV and cable networks and the FTC. They think their driveby installs empower their users who only install this crap when duped into a free form filling tool that cost them little to maintain considering all their efforts are on advertising not the form filling app.

    WebMaster Mike

  3. #3
    Full Member
    Join Date
    January 18th, 2005
    Posts
    322
    Well, Well, Well,
    Let me see if I’ve got this straight. According to Gator’s lawyers, it’s ok to use someone else’s copyrighted material to promote a competitor, as long as said material is on the Internet and accessed from a users web browser. Now correct me if I’m wrong, but if someone copied my entire site and posted it on the Internet as their own, changing only the linking code in my affiliate links in order to receive the commissions, that would be a clear violation of applicable copyright law. But as long as I’m paying for web space and bandwidth, it’s ok to come along and put pop ups on my page or cover my ads with there own in order to divert commissions. It seems to me that the only difference in someone copying my site and someone usurping my site on my own server, is that at least the “copier” has the decency to pay for hosting himself without expecting me to financially support his activities. IMHO, by putting pop ups on my site or their ads over my ads, they are in fact claiming ownership of my site and representing it as their own. How is this not a violation of copyright law?
    Let’s for a moment, though, consider Gator’s opinion. If this practice is in fact legal and ethical, it would be ok for a programmer (Not talking about myself here as I don’t have the technical knowledge to produce such a thing) to create a BHO that would generate a pop up on Gator’s site informing potential customers of the potential risks of downloading Gator and links to testimonials from previous users of Gator who have tried to uninstall it. This BHO could go as far as to cover ads for Gator on other sites with a link to a Gator info site. Would Gator’s lawyers sue the creators of this BHO? Wouldn’t that be a spectacle? Lawyers arguing that this practice is in no way a violation of the rights of web site owners in the morning and just the opposite in the afternoon.
    Before closing, let me state in no uncertain terms that I am NOT suggesting that a programmer develop such an application. There is no doubt in my mind that the creators would be sued not only for an injunction against distributing the software but for monetary damages as well. Imagine the potential cost of stopping just one download. Think of all the future purchases that person might make. You could be held liable for the loss. And if you won the case, that would set a legal precedent which could mean the death of affiliate marketing as we know it.

    Jason
    “That’s the song I’ve been sangin for years, that’s the way the wild wind blows” – Robert Earl Keen

  4. #4
    ABW Ambassador affiliatemakeover's Avatar
    Join Date
    January 18th, 2005
    Location
    Cleveland, OH
    Posts
    821
    I'm a bit confused, for the first time ever, in my webtrends report for a client, Gator.com shows up as a referrer. How is that possible?

    "I work really hard on my hair, and then you hit it."

  5. #5
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
    Join Date
    January 18th, 2005
    Location
    St Clair Shores MI.
    Posts
    17,328
    Awe ..go ahead and write the BHO program NewcastleB. We can put it up on our sites as a driveby hidden install.

    WebMaster Mike

  6. #6
    Affiliate Manager Allen Nance's Avatar
    Join Date
    January 18th, 2005
    Location
    Colorado River, Bullhead City AZ
    Posts
    1,604
    I'm a bit confused, for the first time ever, in my webtrends report for a client, Gator.com shows up as a referrer. How is that possible?


    Gator is now teamed up with Overture and has a search box somewhere in their software, pop-up or whatever kind of help tools they provide to the unwary....

    Allen

  7. #7
    Defender of Truth, Justice and the Affiliate Way
    Join Date
    January 18th, 2005
    Location
    The Swamp
    Posts
    7,503
    quote:
    Gator's argument is that consumers should be able to decide what they see on the Web and not Web site owners. It said in its suit that Extended Stay America has no right to prevent computer users from choosing to get its software and "viewing separate works, comprising advertising on that user's own computer screen, even when other works share the screen."



    When I see lawyers having to stoop to "scare" tactics as their main line of defense, instead of sound law, then I smell desperation. Also, file a suit against someone who trying to protect their business interests and maybe you will scare off anyone else who may be thinking about jumping on the sue gator bandwagon that seems to be so prevalent right now.

    The Internet is an information medium. So is print, TV, and radio. All these information mediums have been historically protected against infringement by the FTC. Well protected I might add. So here is a scenerio which is probably technologically possible with the progression of such things digital TV, TIVO, and screen in screen TV. What do you think would happen if a TV network developed a program where they offer advertisers a really great new marketing program. It targets certain product commericals being run on any other network at anytime. When your targeted product ads run on any other network, a small screen in screen will open showing your commerical at the same time over your competitors. It may even over ride the sound of the original commerical. Now to get the general public to buy into this, you will provide to the a free small box they hook up to their TV in order to be able to see these ads. You push it as giving them more "freedom" of choice and after all it's the consumers TV, so they can have it display whatever they want. The extra ads they will be seeing will offer them some type of extra reward. They'll recieve special coupons, rebates, and notices about special sales from these "special" ads right to their email box or through the mail. And to really draw them in, maybe they will get a couple of cents for each ad they view, and this special box tracks those ads being viewed.

    Why hasn't something like this emerged? Because the TV ad industry realizes that the FTC would be all over them in a heartbeat. There would be huge civil suits, possible jail time, big fines by the FTC, and broadcast licenses would at stake. So what is the difference? I see none. Except that many individuals in the regulatory agencies and prosecutor's offices are way by the learning curve when it comes to computer technology and the Internet and are swayed by the lame type of arguements companies like Gator are throwing out there.

    Keep Your Hands Off My Cookies

  8. #8
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
    Join Date
    January 18th, 2005
    Location
    St Clair Shores MI.
    Posts
    17,328
    BLFH has the right perspective and the right legal arguement. The FTC has rules -regulations and stiff laws in place that do need to be applied to the Internet broadcast medium. Tell your local State Attorney general -Governor and Congressmen that you expect FTC laws to apply to any registered USA hosted domain. Foreign domains would fall under international similar laws. IP broadcasting is no different than wired or airwave broadcasting in that all enities have to respect and not infringe on the rights of those who own that IP address.

    Shared IP addresses will only be covered if they belong to one enity. So virtual hosting restrictions might have to be looked at if you want to control what gets seen on your sites.

    WebMaster Mike

  9. #9
    Newbie
    Join Date
    January 18th, 2005
    Posts
    1
    quote:

    Gator's argument is that consumers should be able to decide what they see on the Web and not Web site owners...


    Excuse me, but Gator does NOT allow users to decide what they want to see either... I see no program in Gator that lets you choose your pop-ups. Many web sites at least integrate their ads with cookies, so that ads will be based on users use history. I also think that web site owners (since they are the ones PAYING for their right to be on the web) should decide what they want users to see. The user makes the choice to visit the site, therefore they are "agreeing" to view someone elses right to express themself. GAIN belongs in the land of fire...

    quote:

    Gator has declined to comment about the case, but on-line advocacy group, Electronic Frontier Foundation, which is considering supporting Gator's case, has said the issue is about who controls a computer when people go on-line. "Is it you, or is it the company whose Web site you happen to be using?" asked Fred von Lohmann, a senior staff attorney for the Foundation. He told Bloomberg that if Gator loses, Web site owners would have "far more control over the end user than is appropriate."


    As I said above, it is the web site owners RIGHT to put whatever they want on their site. Gator is actually taking control away from both the user and the web site owner. The site can't control GAIN, and neither can the user. Web site owners should have control, being that it is their site. Companies such as Gator should have no right to throw its foot in the door.

    On a side note, Gator should also only INFECT the program that it installs with. For example, I got GAIN through iMesh. Therefore, it should only be allowed to pop-up ads through iMesh, and only while iMesh is running. This does not mean that everytime I start up my browser I should get bombarded by un-opted ads. I tolerate GAIN in iMesh only because I like my movies and music, but the fact that it infects your entire system (basically any program that accesses the internet) is completely unacceptable in my eyes. I agreed for its annoyance only through iMesh, but I DID NOT AGREE for it to take CONTROL over other inet programs such as IExplorer.

    Enough venting... for now. I need to finish my homework.

    "Raidien O. Sciarch"
    raidien_@hotmail.com

  10. #10
    Newbie
    Join Date
    January 18th, 2005
    Posts
    45
    classic operating procedure for the Gator boys... if they smell a lawsuit coming, they get proactive and sue the other party first. Old school legal approach which gives them so advantages.

    I've heard rumblings that one of the software guys is considering something similar... targets TBD.

  11. #11
    Defender of Truth, Justice and the Affiliate Way
    Join Date
    January 18th, 2005
    Location
    The Swamp
    Posts
    7,503
    You'd probably know about that Neil. [img]/infopop/emoticons/icon_razz.gif[/img] [img]/infopop/emoticons/icon_biggrin.gif[/img]

    Keep Your Hands Off My Cookies

  12. #12
    ABW Ambassador CrazyGuy's Avatar
    Join Date
    January 18th, 2005
    Posts
    1,463
    quote:
    Originally posted by Neil Pinehurst:
    I've heard rumblings that one of the software guys is considering something similar... targets TBD.


    Yeah I heard that too - heard they were gonna sue those TopMoxie boys.

    It's difficult to know how much you can trust those kinds of rumblings though. Sometimes people just say/post things to plant a seed they hope will grow into something by itself.

    Are you Crazy?

  13. #13
    ABW Ambassador
    Join Date
    January 18th, 2005
    Posts
    637
    quote:

    Gator has declined to comment about the case, but on-line advocacy group, Electronic Frontier Foundation, which is considering supporting Gator's case, has said the issue is about who controls a computer when people go on-line. "Is it you, or is it the company whose Web site you happen to be using?" asked Fred von Lohmann, a senior staff attorney for the Foundation. He told Bloomberg that if Gator loses, Web site owners would have "far more control over the end user than is appropriate."



    Hello?

    We need to get on EFF right now! They are a powerful force in the legal circles. They have friends in the right places.

    They are obviously misguided and do not understand this situation. They are probably working off Gator press releases. We need to start emailing them right now with the facts of the matter not PR garbage.

    Their site is http://eff.org
    The guy cited in the article is Fred von Lohmann

    His info is:
    Fred von Lohmann, Senior Staff Attorney (Fair Use & Intellectual Property)
    fred@eff.org
    +1 415 436 9333 x123

    His bio is:

    Fred von Lohmann

    Senior Staff Attorney (Intellectual Property & Fair Use)
    Fred von Lohmann is a Senior Staff Attorney with the Electronic Frontier Foundation, specializing in intellectual property law. Before joining EFF, Fred was a visiting researcher with the Berkeley Center for Law and Technology. His research focused on the impact of peer-to-peer technologies on the future of copyright. Prior to his research fellowship, Fred was an associate with the international law firm Morrison & Foerster LLP, concentrating on transactions and counseling involving the Internet and intellectual property. He comments frequently on copyright law and the Internet, including issues related to online music distribution and the Digital Millennium Copyright Act (DMCA) and has advised a variety of Internet clients, including Yahoo, Verio, Myplay, and NBCi. Fred has an A.B. from Stanford University and a J.D. from Stanford Law School.

    So he's no podunk. Be nice and I'm sure he'd change his tune if he gets the real facts.

    Be nice. Be accurate. I've had good dealings with EFF in the past. They are good people. They even helped us get a pro bono lawyer for a case we were involved in. There is no way they'd come down on Gators side if they knew the facts. And if we can sway them to CHANGE their position, it's be a huge win for our side.

    Imagine the change in the dynamic if a previous ally turned into an adversary? (for gator I mean) They'd then have to attack EFF and that'd get them killed in the media.

    http://SearchToSale.com - Turns your search box into money.

  14. #14
    ABW Ambassador Andy's Avatar
    Join Date
    January 18th, 2005
    Posts
    4,178
    People keep telling me that they didn't realize by downloading these software programs, they were essentially agreeing to giving them Carte Blanche to do whatever they want to do with their computers.

    No one, including those who've read the TOS, understood this to be the case. Even people who understand computers pretty well weren't aware that these programs would have so many fingers, and get into so many programs and files.

    End users are being taken advantage of. When someone is on my site, they should see what I want them to see, and nothing else. If the end user doesn't like what I'm offering, they're welcome to go somewhere else, but no one has the right to change or modify what is supposed to be on my page.

    Andy

    AFFILIATE MARKETING STANDARD: The site upon which the initial action to buy occurs is the site the commission is paid to. Period.

  15. Newsletter Signup

+ Reply to Thread

Similar Threads

  1. British Candy That Bites You Back
    By Rhia7 in forum Virtual Family and Off-Topic
    Replies: 4
    Last Post: October 23rd, 2008, 09:18 AM
  2. Overstock SUES WhenU and Gator!
    By sweat in forum Midnight Cafe'
    Replies: 53
    Last Post: July 1st, 2003, 03:11 PM
  3. MetroGuide Sues Hotels.com - Gator in the middle !!
    By Andy Rodriguez in forum Merchants opposed to ParasiteWare
    Replies: 15
    Last Post: March 10th, 2003, 08:49 PM
  4. UPS Sues Gator
    By Potent Mix in forum Midnight Cafe'
    Replies: 6
    Last Post: October 3rd, 2002, 05:19 PM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •