Keywords and Pop-Ups Richard Warner

Keyword Advertising  If you search on Google for U-Haul or Ryder Truck, several advertisements appear on the right hand side of the search results.  These ads are triggered by keywords.  A business contracts with Google for its advertisement to appear when, for example, someone uses “U-Haul” as a search term.

Market Coordination  “During the morning a number of people step into a Milan café for an espresso. They do not doubt that it will be available. What justifies their confidence? Making the coffee available rests on a great deal of cooperation, specifically the assignment to many people of performances that together accomplish a feat far beyond the capacity of any one person alone. It is accomplished by market transactions that assign and link both multiple performances and multiple chains of them. Farmers cooperate in growing and harvesting the coffee beans. Truck drivers or locomotive engineers transport the beans to a seaport on highways or railroads that have been constructed by many kinds of cooperating laborers.

Market Coordination  At the seaport, longshoremen and ships’ crews join the chain. At a dock in Genoa, shipping the beans on to Milan calls again on performances from longshoremen, warehousers, and truckers. Somewhere along the chain, some people roast the beans, and others fabricate bags for carrying them. Think of other participating cooperators; insurers and inspectors; wholesalers and retailers.... However great their distance from Milan, innumerable people play their roles in cooperation, no less so than the surly or obliging waiter in the café.” Lindblom, The Market System.

Information and Efficiency  Information, not centralized planning, is the thread that ties the individual efforts together. The farmers growing coffee beans estimate the volume buyers will want to purchase. Coffee manufacturers and wholesalers coordinate their efforts through communication with each other and with those who transport the beans from the coffee fields. Wholesalers estimate the demand from retailers, who in turn estimate the demand of consumers like the café in Milan, which estimates the demand from its customers.  Market economies depend on a flow of information.

Efficiency and Pop-Ups  The more accurate and less costly the information, the more efficient the economy-- we spend less to achieve the same results. The savings can be used for other purposes-- education, relief of poverty, improved health insurance, and so on.  Pop-ups are a very efficient form of advertising. They are highly targeted and inexpensive.

Targeting  Targeting advertising is the process of matching advertising to recipients in ways that maximize the likelihood that recipients will purchase in response.  Targeting maximizes the return on advertising expenses.  Targeting does not merely benefit businesses; it also benefits consumers by reducing the amount of irrelevant information that bombards them.

UHaul v. WhenU  WhenU distributes a free, software program called, “SaveNow.” The program is bundled with free screensavers.  When you visit an Internet site the program makes a pop-ad appear on top of the web site.  UHaul sued WhenU claiming copyright and trademark violations. The court rejected these claims.

An Analogy  Joe and Moe own coffee shops that face each other on opposite sides of the street. Joe arrives for work one morning to find that Moe has painted “Eat Better At Moe’s” on the front of Joe’s store.  Moe trespass when he paints the sign on Joe’s storefront, and Joe is entitled to remove the sign, recover damages, and enjoin Moe from such activities in the future.  Moe can walk up and down the sidewalk wearing a sign that says, “Eat Better At Moe’s,” and he can have the same sign on a billboard next to Joe’s.

Pop-Ups As A Trespass  Moe commits trespass to land: an intentional unauthorized access.  The Internet: Think of the home page of a commercial web site is a storefront.  Why should you be allowed to display ads over this storefront?  But: on the Internet, there is no sidewalk.  And, the pop-up ad is displayed on a consumer’s computer, not on the property of a business.

Pop-Ups Behind The Site  These arguments apply when the pop-up appears on top of the web site.  What if the pop-up appears behind the site so that it is only seen once the browser is closed or minimized?

Another Analogy  You wear glasses with a wireless Internet connection and a miniature camera and projector. As you walk along a street, the camera sends what you see to an Internet site that then sends advertising to the projector which displays.  To you, it appears as if the advertising were superimposed on the objects in front of you. The glasses are free, provided by the businesses whose products and services are advertised. These same businesses maintain the Internet site.  Neither you nor the businesses commit any legal wrong.

Which Analogy?  Are pop-up ads like the sign on the physical store front?  Or, are they like the glasses?  What are the grounds on which we should answer?