Toolbar Copyright question

[Dominata]

I know this isn't about Trademarks, but I think Legal Issues are the topic here.

What if a search engine provided a free toolbar with features to scan a web page, target key words on that page and add links to their advertisers on those keywords. The links wouldn't be just underlined links but highlighted links that would stand out beyond any underlined links on the page. What if that search engine had a contract with Amazon and the toolbar looks for ISBNs and links to Amazon for that book. What if they came to your web site and you were Barnes and Noble.

The words Highjacking adware spyware all come to mind here

Check out Googles new Toolbar
Will they get away with it?

http://toolbar.google.com/

Dominata

 

[dtobias]

It's not anything illegal if the user who installs the thing is aware of what it does, and it's not snuck into their system like some of the adware/spyware is. It's my computer, and if I want to put something on it that shows supplemental information based on my browsing, it's my own business, not that of the sites I'm surfing to.

However, since that GoogleBar only works with IE, and I use a better browser (Mozilla), I'm not interested anyway.

 

[FineE]

It's not anything illegal if the user who installs the thing is aware of what it does, and it's not snuck into their system like some of the adware/spyware is. It's my computer, and if I want to put something on it that shows supplemental information based on my browsing, it's my own business, not that of the sites I'm surfing to.

However, since that GoogleBar only works with IE, and I use a better browser (Mozilla), I'm not interested anyway.

There are two issues here:

a) The rights of the computer owner.

Here that questions are: Did the computer owner give informed permission to install the software. Can the software be easily removed? Most spyware /adware fail badly here but the new GoogleBar passes with flying colours.

b) The rights of the web publisher.

Here the new GoogleBar may very well have crossed the line. Adding additional information to a toolbar based on somebody else's copyrighted website, without the copyright holder's permission, look's to me like copyright infringement, particularly when the "additional information" is a targeted link to a competitor's site. It may also be "business interference". The example that comes to mind is parsing the Barnes and Noble website for ISBN numbers in order to generate links to Amazon.com from the toolbar. Furthermore I don't see how the computer owner can waive these rights on behalf of web publishers both large and small. This may come back to haunt Google in more than one way.

As for not caring about Internet Explorer; any webmaster would be crazy to do this regardless of what one thinks of Microsoft and their products. IE still has well over 80% of the market. By the way I would say the same thing about Mozilla FireFox and it only has about 5 % of the market.

 

[Dominata]

The copyright infringer, Google in this case modifies the original art and re-delivers it back to the user with url, logos trade dress etc. still intact. Giving the impression that the copyright holders have given their permission to modify their work.
This not only infringes copyrights but on trademarks as well.
If I were a Lawyer I would jump on this class action for my retirement fund.

 

[dtobias]

The copyright infringer, Google in this case modifies the original art and re-delivers it back to the user with url, logos trade dress etc. still intact. Giving the impression that the copyright holders have given their permission to modify their work.
This not only infringes copyrights but on trademarks as well.
If I were a Lawyer I would jump on this class action for my retirement fund.

I haven't used that toolbar (since it doesn't work in my preferred browser), but does it actually alter the text and/or graphics of other web sites and insert material of its own right in the middle of it where it's difficult or impossible to tell whether it's part of the original site or added by Google? If it does that, then maybe there's a case as you say. But if the supplemental material is clearly separated, over in a "bar" attached to the browser rather than in the main browser window, then they're not actually adding anything to the site... it's more like somebody buying a billboard that happens to be right next door to a store and using it to advertise a competing store selling similar things. Or union picketers standing on the sidewalk outside a business waving signs saying not to shop there because they are unfair to labor; they're right by the business in question, and their message becomes part of the experience of shopping there, but nobody would think they're endorsed by the business, and they have the First Amendment right to protest the way they are.

 

[Dominata]

http://news.com.com/2100-1032_3-5582792.html?type=pt&part=inv&tag=feed&subj=news

 

[theparrot]

This came up before, right at the end of the boom, a company did the same thing. Suits were filed. I never heard any results from the suit, so I guess the company must have gone bankrupt before it was ruled on. I guess this time suits will be filed again, and google this time we will get a ruling and know.

 

[dtobias]

An interesting question... the way that thing works it is close to the line between what's permissible and what isn't, and I have no idea which way it will fall.

Now, if I buy a book or magazine, I have the right to use a highlighting marker on it and write notes in the margins, even if the notes are critical of the book or its author, or remind me of competing books on the same subject. One could argue that putting in the Google toolbar, if it's done with the knowing consent of the computer user, is simply a manner of annotating Web sites this way; however, the notes are originating with Google and aren't under the individual control of the user, so it's less of a case of personal fair use. There are cases going on about software that "edits" DVDs to take out objectionable parts of movies, which producers claim infringes their copyright, so this could be a similar issue.

 

[FineE]

An interesting question... the way that thing works it is close to the line between what's permissible and what isn't, and I have no idea which way it will fall.

Now, if I buy a book or magazine, I have the right to use a highlighting marker on it and write notes in the margins, even if the notes are critical of the book or its author, or remind me of competing books on the same subject. One could argue that putting in the Google toolbar, if it's done with the knowing consent of the computer user, is simply a manner of annotating Web sites this way; however, the notes are originating with Google and aren't under the individual control of the user, so it's less of a case of personal fair use. There are cases going on about software that "edits" DVDs to take out objectionable parts of movies, which producers claim infringes their copyright, so this could be a similar issue.

I believe there is a very important distinction here between the user removing content where legitimate fair use arguments can be made and a third party, other than the web publisher or the user, introducing new competitive commercial content in the process even if the latter is done with the consent of the user.

To give an example:

Suppose I produce a television set that replaces the commercials in television with my own commercials and I then give this special television set for free to consumers. The viewer will see the same number and type of commercials but the revenue from these commercials goes to the set manufacturer rather the broadcaster. I doubt anybody would argue fair use rights of the consumer (viewer) in this situation. This is not using the mute button on the remote during the commercials or making a copy for personal use.

Yet this is exactly what happens when a spyware / adware provider changes the affiliate cookies of a webmaster to their own, which is a very serious problem for many webmasters. There is a very important distinction between this and blocking ads or cookies. The Google toolbar does not go this far but it does introduce competive commercial content in the process. To Google's credit this is a beta and they are not getting paid by Amazon.

I do believe that the line has to be drawn at the introduction of competiteve commercial content in the process, by a third party.

 

[jberryhill]

I believe there is a very important distinction here between the user removing content where legitimate fair use arguments can be made and a third party, other than the web publisher or the user, introducing new competitive commercial content in the process even if the latter is done with the consent of the user.

It's a great question. I use a number of HOSTS entries to null out things like doubleclick and other banner servers. That causes web pages to be displayed in a way that differs from the publishers intent.

Where you come out on this seems to be a matter of perspective. Dan's point, which boils down to "it's my computer, and I can display things on it any way I'd like" is pretty much my gut reaction as well. And if people at least knowingly install the software with constructive notice of what the software does, then it seems fine. On the other hand that is the same argument the crapware publishers make, knowing full well their affiliates bundle the crapware without notice in stuff that kids are going to install on their parents' computers so that parents like me spend hours trying to get rid of it.

It's not a slam dunk either way.

Suppose I produce a television set that replaces the commercials in television with my own commercials

That was the argument recently made by broadcasters - that TiVo's commercial-skipping feature undermined the basis of the bargain involved in broadcast television. My understanding is that TiVo has, in effect, implemented what you suggest, and that a banner ad is displayed on newer TiVo units while you skip the original commercials.

 

[theparrot]

Where you come out on this seems to be a matter of perspective. Dan's point, which boils down to "it's my computer, and I can display things on it any way I'd like" is pretty much my gut reaction as well. And if people at least knowingly install the software with constructive notice of what the software does, then it seems fine. On the other hand that is the same argument the crapware publishers make, knowing full well their affiliates bundle the crapware without notice in stuff that kids are going to install on their parents' computers so that parents like me spend hours trying to get rid of it.

It's not a slam dunk either way.

My own guess, is that it will wind up being legal for you to modify your way to view a web page. It willl not be legal to distribute preconfigured ways to modify web pages. Just like with the book example above, I can highlight it, write margin notes, then sell that book, but I can not make copies of my derivative work based on that book even to give away.

That was the argument recently made by broadcasters - that TiVo's commercial-skipping feature undermined the basis of the bargain involved in broadcast television. My understanding is that TiVo has, in effect, implemented what you suggest, and that a banner ad is displayed on newer TiVo units while you skip the original commercials.

Replay tv was the one with the commercial skip feature, and they got sued over it. From reading the thinking behind the beta max case (closest precedent law I know of anyway), I think if it goes fully to court the broadcasters will win. Replay was sold, and the commercial advance pulled out. As far as I know the 'banner ads' are displayed when you pause the tv show not to replace ads, but then I have the replay not the tivo.

 

[FineE]

It's a great question. I use a number of HOSTS entries to null out things like doubleclick and other banner servers. That causes web pages to be displayed in a way that differs from the publishers intent..

This is also a matter of perspective. If the publisher is the sole source of the advertising then the publisher can control the annoyance level of the advertising and consequently the percentage of end users will either block the ads or go to another site. There are a some users that will block every ad, but there are far more users out there that will block out aggressive advertising. I would not be surprised if there are many publishers out there who will accept a certain level of loss and take the probability of ad blocking for a given type of ad into consideration when choosing the type and frequency of ads on their websites.

I visit a site quite regularly. Initially it just had a couple of banners and some google text ads with the content. No problem so I did not block anything. Once in a while one of the ads peeked my interest so I clicked on it. One day the publisher got greedy and went for pop up and spyware download hell. I add the site to my restricted sites in IE. This blocked not only the pop ups and spyware downloads but also the original banners and text ads.

In my example above the aggressive advertising originated with the publisher, but how would you feel as a publisher if your ads were blocked by user who had previously clicked on them as a result of a third party outside of your control introducing ads on your website? Or as an end user if legitimate fair use rights were disabled in hardware or software in order to protect copyright holders from parasitic third party advertising?

This is not a slam dunk case, I can see the arguments both in favor of fair use rights, and copyright protection rights. What I cannot see is the argument in favor of allowing third parties to introduce their own advertising between a web publisher and web reader to the detriment of both.

 

[FusionX]

I don't buy the whole argument that webpulishers have little or no right about controlling the way that their webpage is viewed by the visitors.

What if Yahoo! or Microsoft come up with a new version of their respective toolbars that block (or replace) all the Google Adwords ads (supposedly the main source of revenue for Google) displayed on the Google search page? Will it be acceptable to Google? Google will be on the receiving end and I am sure its gonna hurt.

Just my 2 cents.

FusionX

 

[dtobias]

I don't buy the whole argument that webpulishers have little or no right about controlling the way that their webpage is viewed by the visitors.

But that's how the Web has always been. From the earliest browsers, it's been possible for the user to alter the configurations to make very significant changes in how the sites appear, like disabling images, scripting, applets, cookies, changing fonts and colors, and many other things. In more recent times, various forms of ad-blocking have been added to the mix.

Somebody who goes to a site with a text-only browser like Lynx will see the content in a very different way from how the developer probably intended. Is this a "violation" of the copyright?

 

[jberryhill]

I can highlight it, write margin notes, then sell that book, but I can not make copies of my derivative work based on that book even to give away.

Well, I know that your margin notes and highlightings are very informative. Can I hire you to (a) receive all of the books I buy from Amazon, (b) mark them up, and (c) send them to me?

 

[namestrands]

Didnt microsoft have something similar, and then pulled it due to Trademark and Anti-trust issues?

 

[Dominata]

The same guy invented both.

http://yro.slashdot.org/article.pl?sid=05/02/20/1926227&tid=155&tid=217&tid=109&tid=17

 

[FusionX]

There is at least some recourse for the webmaster http://www.google-watch.org/toolbar.html

First C&D already issued in this case http://www.okario.com/assets/google_cd.pdf

 

[theparrot]

Didnt microsoft have something similar, and then pulled it due to Trademark and Anti-trust issues?

yes, they did have something similar. They pulled it due to the outcry against it, and not wanting any more bad pr while facing the lawsuits about becoming a monoply. It was never tested as to if they could legally have done it, and even if it had it may have been on a different basis due to their control of the default install of windows.