• by Tom Hespos , November 26, 2002

It seems we’ve gotten to the heart of the issue surrounding the latest round of lawsuits against behavioral marketing company Gator.

In my opinion, the issue is one of publisher control over consumer’s desktops. It seems that publishers such as The Washington Post, The New York Times, Dow Jones and others involved in the suit think they should have ultimate control over how their websites are displayed to consumers. According to their lawyer, Terrence Ross, the display of pop-up ads in conjunction with a publisher’s content “alters the display of the website, which constitutes copyright infringement.”

This view makes absolutely no sense to me. Why are these publishers picking on Gator exclusively? If they truly believe that they have ultimate control over how their content is displayed to consumers, then there is a laundry list of other companies they should be suing to protect that “right.” Here’s a list:

• AOL Time Warner and other companies using exit ads - Go visit any one of Time Warner’s magazine properties’ websites. Then type www.nytimes.com into your browser’s address bar. Most likely, you will see a popup ad that appears over the nytimes.com website’s content, pitching a magazine subscription. If we think that pop-ups alter the display of a website, then maybe the publishers suing Gator should consider going after the world’s largest media company.
• WhenU, Hotbar, Weatherbug and any other companies that distribute ad-supported software - Each of these companies is capable of delivering ads that might appear simultaneously with another publisher’s content. So why is Gator being singled out?
• Any of the major Instant Messaging applications - We wouldn’t want the occasional ad or Instant Message from a buddy to interrupt consumers’ content experience, would we? After all, IM applications can serve ads. And windows can suddenly pop up over publisher content that contain messages from friends and relatives. We wouldn’t want that, would we?
• Microsoft - It might interrupt the consumer’s content experience if, say, a window were to appear telling consumers that new updates to their operating system are available. A consumer might also boot a Microsoft Office application while they’re viewing a page of The Wall Street Journal and get a splash screen for Microsoft Word or Outlook or any one of several applications they might want to use.
• Companies that distribute browsers - We all know that there are subtle nuances to the ways that different browsers display website content. What if a browser like Opera didn’t display content to the satisfaction of the publishers? Do the publishers involved in this lawsuit have an objection to the small Microsoft logo that appears in the upper right-hand corner of my Internet Explorer browser whenever I visit their sites?
• Google and other search engines that cache content - If I want to look at a page that Google cached when its search spider crawled through a major newspaper site, I get Google branding up at the top of the page. Does this constitute copyright infringement?
• Consumers themselves - I can surf many different websites simultaneously. If I have the front page of The New York Times open in one browser window and the front page of The Washington Post in another, right next to it, does that mean that I’ve “altered the display of the website?” If one of these sites spawns a popup ad that covers the content of the other window, is there a problem?

The very existence of this lawsuit shows me that some content publishers simply do not get the fact that the consumer’s desktop is a multi-tasking environment. Consumers may use a variety of applications to process and display content in a variety of different ways. At any given time, there can be many ad elements competing for a consumer’s attention. If we want to tell consumers that they don’t have a right to determine how that content and advertising is processed, then we’re opening a giant can of worms. I would have no problem if website publishers wanted to amend their policies so that users surfing their websites would need to disable any other ad-supported application they’re using at the time. At least then, consumers would be able to make a choice as to whether viewing publisher content is worth having to do that. But that’s not the approach here.

In any case, we should stop pretending that publishers have 100 percent of the attention of the consumers who visit their web pages. We know that to not be true. What’s happening here is that Gator is being crucified for what amounts to a very common practice on the web, one that has been a part of the web’s appeal since it became a commercially viable medium. Had this lawsuit been initiated in 1996, maybe these publishers would be suing PointCast for interrupting the display of their websites with their screensaver. Or maybe they would be suing any one of the financial publishers for their streaming quote tickers.

One thing I’m sure of is that a ruling against Gator would be a ruling against consumer choice. It would set a dangerous precedent that could affect consumer’s rights to display content on their access devices in the ways that they like. And as I mentioned in last week’s column, being anti-consumer choice is not the way to go in the Internet business. After all, the web is the first consumer-driven medium.