Copyright Issues and AdwareCopyright Issues and Adware

Mark D. RobinsNixon Peabody LLP

Practices at Issue – SaveNow (WhenU.com)

Practices at Issue – SaveNow (WhenU.com)

• Ad placement/sales process:– Software bundled with other programs– Pulls pop-up ads from directory– Advertisers buy right to have ads displayed

based on topical categories– No guarantee that ad will be displayed with

any particular web site

Practices at Issue – SaveNow(WhenU.com)

Practices at Issue – SaveNow(WhenU.com)

– Program correlates categories of ads to:o Search phraseso Web addresseso Keyword algorithms

– User’s activity is matched to category from which ads are pulled for display

– WhenU sells based on impressions, clicks, or purchases

Practices at Issue – SaveNow (WhenU.com)

Practices at Issue – SaveNow (WhenU.com)

• User perceptions:– Pop-up or pop-under format– Utilizes Windows environment– Ad appears in WhenU branded window– Notice: “This is a WhenU offer and is not

sponsored or displayed by the website you are visiting. More. . .”

– Prior version: “A WhenU offer – click? for info.”

Practices at Issue – SaveNow (WhenU.com)

Practices at Issue – SaveNow (WhenU.com)

• User perceptions:– Must click acceptance of agreement to download– Agreement: “SaveNow ads/offers are delivered

independently from the site the user happens to be visiting when they see a SaveNow ad/offer and are not endorsed or affiliated with anyone other than WhenU.com”

– For brief period, one program could be received without assent if browser settings were below Microsoft security recommendations

Copyright – Pop-Up AdsCopyright – Pop-Up Ads

• Display Right– SaveNow does not show users plaintiffs’ web

sites– Plaintiffs do not have right to restrict display of

web sites to instances of unobstructed accesso Such a right would not be consistent with Windows

environment

– Rejection of analogy to framing/in-line linking where code on one web page causes another web page to be accessed and displayed

Copyright – Pop-Up AdsCopyright – Pop-Up Ads

• Derivative Work– WhenU window is distinct occurrence from

plaintiffs’ web sites– No alteration of HTML code of plaintiffs’ web

sites– Opening new window cannot be copyright

infringement

Copyright – Pop-Up AdsCopyright – Pop-Up Ads

– Alteration deemed too transitory to satisfy “fixation” requirement for derivative work

o Analogy to device that varies play of video game

– Temporarily obscuring portion of web site does not change it – no recasting, transforming, or adapting

– Analogy to cases involving retransmissions of works in altered form in violation of licensing restrictions rejected

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