The Gator software application, which is often unknowingly downloaded via popular file sharing programs, has now become the deserving target of recent legal challenges. A group of publishers, including The Washington Post, The New York Times and Dow Jones filed suit last month in federal court in Alexandria, Va., charging that the Gator online advertising network served pop-up ads on their Web sites without their permission.
The plaintiffs called the Redwood City, Calif., Gator a "parasite" which generates profits by placing unauthorized ads on their Web sites. They are seeking a short-term preliminary injunction against Gator that would bar it from delivering ads to their sites plus a permanent injunction against the company. The publishers are also seeking monetary damages for any ad revenue that Gator made off their sites.
Gator has been misbehaving in this way for some time. The company creates passwords and form management software. But it quietly bundles another program called OfferCompanion to its estimated 10 million users. This piece of spyware collects information about which Web sites these folks visit and Gator uses that data to send these Web surfers targeted ads. In addition, the company markets these services to potential advertisers by promising them that the pop-up ads will be sent to targeted users who visit sites of specific publications such as The New York Times.
Last year, Gator agreed to stop selling banner ads that covered those sold by online publishers, but the company backed down only after the Interactive Advertising Bureau (IAB) came after the company. L.L. Bean has seen fit to send Gator a cease-and-desist letter for launching unauthorized ads on its site. Earlier this year, a court granted WeightWatchers a permanent injunction barring its competitor, DietWatch, from using Gator to send ads to those who visited WeightWatcher.com.
The accusations against Gator get a bit thornier when charges of copyright and trademark violation are thrown into the mix. The publishers contend that Gator's pop-up ads violate their copyright and trademark rights because it is altering the intended display of the work. But Gator has pointed out that many software applications, including AOL Instant Messenger, Yahoo Messenger and Microsoft Outlook automatically display information in a separate Window. Gator also contends that one of the publishers that have filed suit against it, used their service to place display ads on competing publishing sites.
Fighting unwanted display ads for a competitor that pop-up on your site is one thing. Claiming copyright on what a user sees in their entire Web image, including windows for other applications, is a far weaker and more dubious claim.
RELATED LINKS
Ann Harrison is a technology reporter in San Francisco. She can be reached at ah@well.com.
Peer-to-Peer archive
Past newsletters.
