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  1. #1
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    A federal judge on Friday ordered software company Gator to temporarily stop displaying pop-up advertising over Web publishers' pages without their permission.
    http://news.com.com/2100-1023-943515.html?tag=fd_top

    This shows that the judge believes the publishers have a strong case on the merits and will likely prevail in their suit for a permanent injunction. This could be huge!!

  2. #2
    ABW Ambassador mousejockey's Avatar
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    Great news.."<IMG src=http://www.abestweb.com/ubb/icons/icon38.gif> it's what we need to "establish a precedent that prohibits third-party software operators from delivering ads that alter another Web page

  3. #3
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    Amazing!

    Hip hip horaay!

    I really think we should all kindly ask the "publishers" to see this one out and not settle out of court!

    Haiko

  4. #4
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by Haiko:
    I really think we should all kindly ask the "publishers" to see this one out and not settle out of court!

    Haiko
    <HR></BLOCKQUOTE>

    "a jury will make the same decision in a trial."

    Sounds like that's the plan.

    But speaking from idle curiosity and ignorance, how long will it take for Gator to just program out those particular 16 websites?

    Meaning, will it really do any good for you affiliates unless the company you're affiliated with sues Gator (if it's only decided to bar them from those particular 16 websites)?

    Speaking of affiliates, my posts are creeping up there - have to stop soon or I'll get drafted into the affiliates forum.

  5. #5
    ABW Ambassador mousejockey's Avatar
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    Wouldn't it be true to say, once a precedent is set that prohibits third-parties from altering webpages, it would apply to all of us and an end to these parasites?

  6. #6
    Defender of Truth, Justice and the Affiliate Way
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    Or would it mean that every person Gatorized had to file suit in order to get them to stop? And then with each of the other companies popping up everywhere do the same thing? Maybe I'll call that guy back at onadsolutions and see what he has to say about this. [img]/infopop/emoticons/icon_biggrin.gif[/img] Not a lawyer here.

  7. #7
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Originally posted by mousejockey:
    Wouldn't it be true to say, once a precedent is set that prohibits third-parties from altering webpages, it would apply to all of us and an end to these parasites?<HR></BLOCKQUOTE>

    No lawyer here either but as I understand it, it wouldn't prohibit anything - it just makes the *next* trial that much easier when you can say "see what the last judge said?".

    It would only prohibit if a law was written as a result.

    Again tho, I'm not a lawyer (but I DO have many, many other faults - just ask my ex).

  8. #8
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>But speaking from idle curiosity and ignorance, how long will it take for Gator to just program out those particular 16 websites?<HR></BLOCKQUOTE>

    A single day for it to propagate!

    ------------
    MJ,

    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>Wouldn't it be true to say, once a precedent is set that prohibits third-parties from altering webpages, it would apply to all of us and an end to these parasites? <HR></BLOCKQUOTE>

    As long as it finalizes ... a preliminary injuction acts as an indicator, but if they settle (Gator has about $44M) then it is usless [img]/infopop/emoticons/icon_frown.gif[/img] to affiliate marketers.

    Haiko

  9. #9
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    Mousejockey, I'm sorry to say that its not that simple. Assuming that the plaintiffs ultimately prevail in the Federal District Court, that decision will apply only to the parties to that suit.

    Its impossible to predict whether the judge, if a permanent injunction is granted, will issue a published written opinion. This doesn't always happen. If such an opinion should be published, other courts faced with the same issues, would probably find the Virginia Court's opinion to be persuasive and would grant similar relief in any subsequent case based on similar allegations.

    What a favorable final result (for the publishers) would do for the rest of us is dissuade other Gators of the world from taking on the risks associated with the inevitable litigation that would ensue if they tried to do the same thing as Gator. Also, those who advertise through Gator and their ilk would also be dissuaded from taking on this sort of risk. After all, a strong case could be made that those advertising through Gator are just as liable for damages for copyright/trademark infringement as Gator.

    So, all in all, I think a strong precedent would be set for the future even though any order of the District Court would apply only to the parties, again, assuming a published opinion is issued.

    In th interim, I'm sure attorneys for other would be advertisers will advise their clients that there is now a very serious risk associated with the kind of advertising engaged in by Gator. And, current advertisers probably won't renew their contracts unless and until there is a final resulution in Gator's favor (which we hope won't occur). So, this probably won't be a growth industry, at least for a while, if ever.

    I agree wholeheartedly that the publishers ought to pursue this to a final conclusion. In that regard, it occurs to me that the NY Times, Washington Post, et. al, have a lot at stake. I would think that they have a keen interest in quashing this sort of missuse of their web properties once and for all. This has serious consequences for the future. A settlement would'nt prevent the next Gator type predator from defacing their sites down the road. A permanent injunction coupled with a finding of substantial damages would, no doubt, protect their website properties permanently from this kind of chicanery.

    [ 07-12-2002: Message edited by: go60guy ]

  10. #10
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    <BLOCKQUOTE class="ip-ubbcode-quote"><font size="-1">quote:</font><HR>The decision does not bar Gator from delivering pop-up ads over other sites. But it could establish a precedent that prohibits third-party software operators from delivering ads that alter another Web page. It also highlights mounting tension over tactics used by Gator and others. <HR></BLOCKQUOTE>

    However, I will be on the phone with all of the local politicians about this issue again. This is a great starting point for us, and it is important for us to keep the momentum going. The article quotes a lawyer as saying the judge quickly reached the decision, and I'm hoping things are as clear cut as claimed. Again, we all have to keep the momentum going with this. Drop an e-mail to the plaintiffs and show your support (and Thanks)

  11. #11
    ABW Ambassador mousejockey's Avatar
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    Thanks for the insight all, and Tom,I will drop an email and show my support.

  12. #12
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    What this does is open the door for others to join in and petition for a class action suit against gator. This would require a lawyer and a large number of websites to join in.

    My lawyer girlie is busy as hell right now, but I can get her to be exact on what we need, then we just need to find a lawyer wanting to make his/her name. Since the first injunction is in place, the dollar signs of settlement or winning will be in any other lawyer's eyes.

    I think if the lawyer is in the same area, can get them to file an injunction with the same judge. Get pretty much anyone with a website to sign on and make it where gator is just shut down.

    By saying the above, I hope Gator does not take the above post by me to mean I propose a terrorist act like some other wacky parasite company accuses me of.

    Chet

  13. #13
    ABW Adviser Panel Dynamoo's Avatar
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    Even if it is just those 16 sites, the impact on Gator's business model will be substantial.. we're talking about some of the highest traffic sites on the web aren't we?

  14. #14
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    You can bet behind the scenes of this one is the FTC's stance on parasitic Gorilla marketers and Congressional anti-spamm/pro-privacy advocates. Kind of a bow shot to let the wanks in the Ad industry know their will be stiff new rules. Hope it goes to labeling all e-mail advertising as spamm unless sent to a double opt-in address.

  15. #15
    Affiliate Manager Lionstail's Avatar
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    Hi everyone, this is my first post on ABW. I just joined a few days ago and have learned quite a bit from some of the other posters. I'm happy to see that something has finally come up that I can perhaps shed a bit of light upon.

    While I do not know much about this case other than what I read in the news link, I am a lawyer and I do have some experience litigating in federal court, so I can probably answer some of the questions that people have about this case.

    First of all, let me say that Go60Guy's statements all appear accurate, in this post I hope to ellaborate on the litigation process rather than to correct anything said previously.

    As far as the actualy judgment in this case, it appears that the ruling will only be binding upon Gator regarding the 16 sites mentioned as plaintiffs. While it is not unheard of for a judge to expand a ruling and declare activities illegal in general, it is unusual for a ruling to extend beyond the parties involved in the case.

    That said, the element that most of us will be interested in is precedent and how this case may impact future cases. In the federal system, where this case is being fought, there are three distinct levels. These are the District Courts, the Circuit Courts, and the Supreme Court. The country is made up of 11 different Circuits, each of which has multiple districts (except the DC Circuit which just has one).

    When a judge chooses to publish a case, that case becomes precedent. However, the level of significance that is afforded that precedent depends on the relationship between the court issuing the decision and a court deliberating a subsequent matter. For instance, in a future case in the same district, the decision will be afforded great weight, whereas in a case in a different district in a different circuit, it may only be afforded little weight. If a decision is made by a Circuit Court, which can only hear a case on appeal after a district court decision, that Circuit Court decision will be binding precedent on all of the District Courts in the Country, and will be a significant, though not binding precedent, to other District and Circuit Courts around the country. If a decision is made by the Supreme Court, then it is binding upon all District and Circuit Courts nationwide.

    With that background in mind, let's take a look at this case. Let's assume that there's some justice left in the justice system and Gator gets its butt kicked in this case (assuming they don't settle). In that instance, there will be a precedent set in the Virginia District court (I'm not certain which district this case is in, Virginia most likely has several Districts) establishing that what Gator is doing is illegal. While this lawsuit may not directly apply to all publishers, it would mean that other publishers wishing to pursue a case in this same District would have a very, very good chance of winning, and it would strengthen the chance of winning a similar case in other parts of the country. Incidentally, such a precedent would not only apply to Gator, but would apply to other parasites as well.

    Now here's something that I'm not too sure of at this point. In order to bring a case in a certain District Court, there has to be a reason that particular District Court is the appropriate one to hear the case. In this case, Gator is based in California, and often such case are brought in the company's home state because that is the only district that has the right to hear the case. However, this case is being heard in Virginia, so clearly the Virginia District Court has a right to hear the case as well. I'm not sure if this is because it is an internet case and since Gator's actions on the internet affect people nationwide that any District court would be qualified to hear the case or if there's some specific action that was done by Gator in Virginia allowing this particular case to be brought there.

    Here's why I bring this up: if the Virginia courts have the power to hear all cases against Gator's parasitic actions, then this case could become extremely powerful precedent, as future cases could be brought in the same court system to take advantage of this favorable precedent. If there is a reason that this particular case is being brought in Virginia but subsequent cases would have to go after Gator in its home District, this would be a far less powerful precedent as a District Court in California is in the Ninth Circuit and would not have to pay all that much mind to a precedent from a District Court in Virginia in an entirely different Circuit.

    Now, here's the key part. Assuming that all of the assumptions we've made up until now come to play out, that the case will be litigated to its end, that Gator will get its butt kicked, that the judge will publish the opinion and that future cases against Gator and other parasites can be brought in this same District, this would be a very positive step toward the demise of parasites. The reason is quite simple. Once the court decides that what Gator is doing is illegal to these 16 publishers, it has essentially determined that what all parasites are doing to all publishers is illegal. Cases at that point would become very easy to win, and since they are screwing lots of different people, lots of cases would be brought.

    One of the earlier posters mentioned that Gator is cash rich. However, when lots of people are suing you and winning, that cash can go in an awful hurry. Such a change in events would force them to greatly alter the way they do business and would hopefully result in the end of the parasites.

    There is one caveat to all of this however, the judgment would have to be broad enough to cover our sites as well as premier sites like the New York Times. I'm sure we're all assuming that if it's illegal to do to the New York Times that it's illegal to do to us as well. However, we must keep in mind that Gator was specifically targetting the New York Times and others for its sales, whereas our sites are too small to be specifically targetted and just fall into the "other people Gator is screwing over as well" category. It is possible that a judgment could come out specifically banning Gator from doing specific targetting as it did with the New York Times but not for its parasitic activities in general. Let's hope that the judge does not resolve this case in such a wishy-washy manner that does us little good, but that Gator really gets squashed as it deserves.

    Sorry for being so long winded about my response. I just hope I've created more clarity about the subject rather than muddling things further.

  16. #16
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Good post Organic. Hopefully this court case will bring all the parasites to their knees. None of these Duperaffiliates can survive if required to use their own traffic for sales. The courts granted some strange methods for Music Industry to combat the P2P wanks. Ok'd false files -reverse spyware and got just short of DOS attacks.

  17. #17
    ABW Ambassador Andy's Avatar
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    Don't some of the parasites offer incentives to people to click on their affiliate links? I've never had any of the parasite programs on my computer, but I remember reading somewhere that people got bonus points for shopping with these programs.

    How do they get away with that? Isn't it against the TOS to offer incentives? Or do the parasite programs not offer anything extra to their customers?

    Andy

  18. #18
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    "Get Bonus Points for Your Purchases You Can Redeem Later"

    I saw that in connection with one of their programs, I forget which.

    Maybe saying "bonus points" instead of "rebate" is a loophole. Maybe it's just a matter of them not admitting that on the whole internet there are only three merchants that qualify for those bonus points. I don't recall seeing "everytime you buy" (which would obviously be false advertising, and they're of course above that).

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