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  1. #1
    Affiliate Marketing Consultant Andy Rodriguez's Avatar
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    January 18th, 2005
    Sunny Miami
    Interesting view on Media Post article:

    Tuesday, July 2, 2002

    The Real Issues Behind the Latest Gator Suit
    By Tom Hespos

    Last week, several publishers, including The Washington Post Co., The New York Times Co., Dow Jones & Co., Conde Net, Knight Ridder Digital and Gannett, filed a lawsuit against the Gator Corp. The lawsuit alleges that Gator places ads over the web content produced by these publishers, producing a situation in which Gator is making money at the expense of said publishers' hard work.

    Gator has responded with some interesting information. It revealed that The New York Times had placed ads with Gator, which were triggered by a Gator user's visit to,, and How embarrassing for the Times.. .

    To me, what's really interesting in this latest round of legal tussles is that no one seems to be asking the right questions with regard to how Gator operates and how the World Wide Web works. To adequately understand what's going on here, we have to ask the right questions:

    1) Should pop-up ads that appear over the publisher's content but are generated by an entity other than the publisher, be illegal?

    Good question. I'd argue that they should be perfectly legal. That is, unless we're prepared to outlaw other practices that are common on the web. For instance, "exitstitial" ads, popular with AOL-Time Warner sites like Fortune.c om and frequently appear over the content of other sites. Try visiting either of these sites and then surfing to another site in the same browser window. A subscription ad for these sites will appear over the second publisher's content. Should these be made illegal?

    How about ads generated by instant messaging applications? These can easily appear over other publishers' content. Should they go too?

    What about the consumer who opens a window full-screen at and then opens a second window half-screen with The New York Times website inside it. Should multi-window web surfing be considered illegal?

    2) Does Gator violate an implied contract between a website visitor and the publisher being visited?

    In my opinion, not really. If a Gator user fully understands when he installs the Gator software that it will generate ads over the content of visited publishers, the entity doing the violating here is the visitor and not Gator. Personally, I think the plaintiffs' efforts would be better expended by enforcing that implied contract. For instance, a publisher could develop a "Gator sniffer" that refused entry to anyone making use of the software. I think publishers have to make the implied contract a bit more ironclad. To protect their business model, publishers have to inform visitors that advertising supports their content, and that visitors have to hold up their end of the bargain by viewing both the content and the advertising unaltered. Publishers have every right to do this. Maybe they should.

    3) Is Gator getting a "free ride" on publishers' content?

    Depends on how you look at it. Gator is not a publisher of content. It makes software that is supported by advertising. Some people might not like that, but I would maintain that a software developer has the same right to support its software with advertising that a content publisher has to support its content through advertising. I would have a problem with Gator if it altered site content without permission from the end user, but Gator users have granted permission for Gator to spawn its ads. I would also have a problem if Gator was trying to pass its ads off as advertising generated by the publisher, or tried to obscure the source of its advertising. Gator carries its branding with its advertising, so there's no question as to where the ads came from.

    For me, the issue at the heart of this lawsuit is the multipurpose nature of the personal computer. When consumers buy newspapers, they tend to buy them for the purpose of consuming the content and advertising within. (Okay, so you can also wrap fish with a newspaper, but that's a side point.) But a computer can be used for many things other than media consumption. While I'm out surfing the web, I might have several other tasks that I'm simultaneously working on. While surfing one site, I might be looking at several others simultaneously. I might be writing a column for MediaPost. I might be instant messaging my sister. All of these things can be happening on various layers of a digital canvas, manifested in the 21-inch monitor on my desk and the operating system on my computer, which allows this canvas to exist in the form that it does.

    Since the commercial explosion of the web, we've been comfortable with the notion that content and advertising, when parsed by a web browser, are delivered to the consumer unaltered and uninterrupted. The very existence of something like Gator begs the question - Is this really the case any more? Maybe it's time to revisit that idea and see if it still passes muster.

  2. #2
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    January 17th, 2005
    He compares Gator to an IM window hiding someone's content, but I don't think it's a valid comparison. Ads in an IM window do not target the content of the site whose view they're blocking, and there is no manipulation of the other site's content. On the other hand, Gator (and several other applications) specifically seek a free ride on other sites' content to use as a vehicle for delivering their own ads, and distort the visitor's experience of the site in the process. The difference is significant and substantive, both in the intent and in the effect upon the site whose content is being manipulated.

    Elisabeth Archambault

  3. #3
    ABW Ambassador
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    January 18th, 2005
    I thought the whole article was silly, are you sure it is not a prank?

    To compare popup ads over your competitions site where you 'steal' revenue to a site the viewer chose to visit, popping up and exit window is ludicrous.

    That is like comparing a walmart employee spray painting "SHOP AT WALMART" across a kmart store to a walmart employee saying - thanks come again - as a walmart shopper leaves the store. They are not the same thing, he further acts silly with his opening browsers side by side.

    He is building strawmen left and right so he can dismiss them with a wave of - look how silly these people are.

    Gator purposefully popups banners to negatively affect the business of another site. It also tricks the user into thinking that sites that do not have popups - may have popups which has a negative effect on the opinion of those sites. Pretty simple concepts and totally avoided in this article. That was either done on purpose or this man has no concept of the real issue and problems.

    He seems to like to play both sides of the fence, as a supposed fighter for the little guy and quotable source for the parasiteware companies when they need one.

    So does being a media consultant pay well? Brains and logic are obviously not needed for the job. After checking some of his other articles, I have no respect for anything this man says.


  4. #4
    Defender of Truth, Justice and the Affiliate Way
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    January 18th, 2005
    The Swamp

    I wonder how much Gator stock Tom Hespos owns? :confused:

    It's these kinds of off center arguements which confuse juries (and judges) when cases are brought to court. The issues are complex and how much you want to bet that the folks hearing the case are doing good just to be able to turn on their computer. It's just a case of mudding the waters.

  5. #5
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    January 18th, 2005
    St Clair Shores MI.
    Gator's Jeff McFadden sure isn't about to devulge that the coding for the Gator form-filling application along with the limited artwork was paid for at the time of launching Gator. That portion or Gator's business ,he says he has to support with parasitic advertising, could be run on a 20.00 monthly hosting fee with a parttime employee. It's a damn free download and a BHO plugin once installed. No bandwidth is necessary beyond the quick FTP.

    This con-artist spends his payroll and coding fees on the parasitewarez, spyware and adware portion only. The Gator app is a front for his grand scheme to monitize other peoples traffic. Die Gator you offer no value to the web surfer.

  6. #6
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    January 17th, 2005
    how much you want to bet that the folks hearing the case are doing good just to be able to turn on their computer.
    I thought a jury was supposed to be people who were your peers. Wouldn't computer literacy be part of what that would take, in a case such as this?

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