• by Tom Hespos , July 2, 2002

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 WallStreetJournal.com, ChicagoTribune.com, USAToday.com and WashingtonPost.com. 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.com and Time.com 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 WashingtonPost.com 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.