Copyright Issues and Adware Mark D. Robins Nixon Peabody LLP

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) –Program correlates categories of ads to: o Search phrases o Web addresses o Keyword algorithms –Users 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) 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) 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 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 access o 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 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 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

New York, NY Rochester, NY Boston, MA San Francisco, CA Washington, DC Albany, NY Buffalo, NY Garden City, NY Hartford, CT Manchester, NH McLean, VA Orange County, CA Philadelphia PA Providence, RI