Stopping Unauthorized Alterations Of Web Sites

By: Steve Outing Imagine if the newspaper or magazine that you published was altered by third parties before it reached its readers. What if unseen hands scooped up copies from newsracks and driveways and covered up ads with other ads, and even altered some of the editorial content by highlighting selected words in yellow?

While that can't happen in the print publishing world, it can and does happen increasingly with Internet publishing.

And while unauthorized alterations would clearly be illegal in the print world (not that it's even technically possible), in the online world it may or may not be within the bounds of the law. Online publishers should be aware of this trend, for it's beginning to affect them. It may soon be time to get the lawyers involved.

How low they'll go

There are two parts to this issue: one affecting advertising, the second involving PC applications that add contextual editorial content and links to Web sites. As you'll see, the various applications vary in impact on Web publishers' sites -- from nasty to benign.

Let's start with what I consider to be the most dangerous (from the Web publisher's perspective) application, Gator, a Web browser add-on. Users of Gator (who must choose to install and use it) see advertising that is generated by Gator, which occasionally pops on-screen and hides ads that are supposed to be on Web sites. In effect, Gator takes over third-party Web sites by covering up their advertising and overlaying Gator's own -- and thus steals revenue. (That's my opinion; the company claims that Gator's model is legal.)

The company, which claims that 8 million people have downloaded its software, offers some useful features as part of Gator -- such as storing a user's personal information and credit card number to allow one-click online shopping -- that have enticed people to use the software. But its other features are more insidious, such as collecting users' information and using it to serve targeted advertising to them. For instance, Gator could allow a company's ads to show up on Gator users' screens whenever they visit a competitor's Web site. The worst-case scenario would be if a Gator-using visitor to Amazon.com were to see pop-ups ads offering a discount coupon for buying books instead at Borders.com.

One Gator user told me, "Gator remembers all my pesky little passwords, quickly fills in forms at my OK, but does come up with some pesky ads when I visit some sites. They are always competitive ads. I've learned to see them coming, and quickly shut them down. The ads on Gator are a bother, but the benefits in time saved far outweigh the bother factor. I find it very efficient."

Though a useful tool in some ways, Gator undermines the whole model for advertising-supported online content. As if e-publishers weren't having a hard enough time surviving, along comes a company that makes it even more difficult.

That's not my link!

Another couple of nasty (from the publisher perspective) programs are TopText, from a company called Ezula, and Surf+. Both of these programs are (like Gator) browser add-ons that offer users nifty functionality. One of the "benefits" of both programs is that they highlight words on any Web site that their users visit, and turn them into hyperlinks.

For example, TopText or Surf+ might for their users highlight the word "brokerage" and have it become a link to Ameritrade. A reader of a WSJ.com article would see that word link to Ameritrade, even though WSJ.com's editors did not make it a hyperlink. WSJ.com would get no revenue from this, but TopText/Ezula would.

If you follow the online news industry, you know that this functionality is similar to what Microsoft proposed to put in its new XP operating system. Its "Smart Tags" feature -- which would have turned words on Web pages into Microsoft-controlled hyperlinks -- created a firestorm of controversy when word got out, and Microsoft backed down and said it (for now) would not include Smart Tags in XP.

While TopText and Surf+ are controversial, too, there's a big difference between them and MS Smart Tags: Users must choose to download and use those applications. (With Smart Tags built in to a dominant operating system, there were reasonable fears that these publisher-unauthorized MS links would become ubiquitous because of the power of the software behemoth from Redmond, Wash.) The argument in support of applications such as TopText and Surf+ says, Web users should have the right to interact with a Web page however they want -- and if that includes turning words not linked by a Web site's editors into hyperlinks, then that's the Web user's right. It's about user choice.

(User choice is an arguable point with these companies. In July, it was reported that TopText was being included as part of a popular file-sharing program called KaZaa. When users downloaded the KaZaa application and installed it, TopText was being installed, too, when users didn't notice or didn't understand the implications of the extra application they allowed to be loaded onto their PCs.)

A more benign application

It's probably fair to say that the majority of Web publishers object to this model of other companies changing the content (editorial or advertising) that users see. But the trend of modifying Web pages of third-party sites can come in a more benign form.

Annotate, a 2-year-old company that started out with a browser applet that pointed Web users to related editorial content based on the content they were viewing, is changing its model. Now, it is looking at marketing its "Net Radar" application as a premium tool that will help publishers retain customers.

According to Bill Burger, an Annotate executive who just joined the company, the new idea is that publishers should offer the Annotate application as a premium offering to its users -- possibly bundled as part of an online subscription offer.

For example, suppose that WSJ.com (the Web site of The Wall Street Journal) offered the Net Radar application to its paying subscribers. When the user downloads this browser add-on, the app begins to watch for specific content on any Web site that the WSJ.com subscriber visits. For example, if the user is viewing an article on washingtonpost.com about biotechnology, the Annotate application might blink to alert the user that WSJ.com has some related biotech coverage that the user might want to see. If the user requests it, the applet will open a new browser window with the WSJ.com content.

The idea of making this a premium offering is new for the company -- so new that no one's tried it out yet. But it is an interesting model for getting Internet users back to your site regularly by always "being there" in their browser to remind them to return to you.

Now, what do we make of the Annotate model? It's less objectionable because it's not taking away revenues (by swapping a site's ads), nor is it changing editorial content (by inserting links within a site's articles). The user chooses to download the software and establish a relationship with a publisher (WSJ.com, in this example). The only thing that other publishers might object to is that the Net Radar application is taking traffic away from them.

Annotate's model does have some things in common with the TopTexts and Gators of the Internet world, in that each changes how a Web site user experiences that site. A third party is interjecting itself onto another entity's Web pages, so that those users who choose to view the publisher's Web page differently see something different from the "pure" form that the publisher intended.

This issue is similar to the debate over the "framing" of Web sites -- where some companies were presenting news Web sites in browser frames, and including their own advertising adjacent to the news publishers' content. That practice was mostly stopped because of legal actions brought by publishers. (See the TotalNews case.)

Here come the attorneys

These new models of altering Web pages are likely to spur lawsuits, say several intellectual property lawyers I interviewed for this column. The Interactive Advertising Bureau (IAB) announced last week that it was contemplating filing a suit against Gator. And Gator took a preemptive strike Tuesday when it filed a suit against the IAB. (See the AP's report on Gator's suit.)

The big question is likely to be, where do we draw the line? Is Gator crossing the line by hiding Web publishers' paid-for ads? Does Annotate cross the line by trying to coerce users back to another site when a user is on a competitor's site? Where in between is the line that separates OK and illegal?

The issues brought up by the likes of Gator and TopText are very new, and the IP law world hasn't grappled with them yet. At best, the attorneys I spoke with could offer some possible legal grounds should publishers decide to do something about this trend.

Alfred Frawley, an IP attorney based in Portland, Maine, says, "My feeling is that these popupunders/overs/whatevers are a trademark, unfair competition problem rather than strictly a copyright problem."

Jessica Friedman, a New York-based IP lawyer, says that Gator, TopText, et al appear to bring up some of the same issues as did the framing of news Web sites. The damage to Web sites and their advertisers may be that the value of what advertisers have paid for on a site is diluted (in the case of Gator, because a Web site's paid advertisers are not getting full value when Gator users don't see the site's sanctioned ads). And for the publisher, Gator can make it more difficult for the publisher to sell ads, because it can't guarantee that Web users will see them.

In the case of applications that add links to other Web sites, Friedman suggests that the issue might be that TopText and Surf+ are creating unauthorized derivative works, which could run afoul of trademark law. "The issue to me is, is there a likelihood that someone who is using this application will be confused that the publication they're reading has set up these links?" she says. If so, there may be a trademark violation claim available for publishers.

The basis for future legal action by publishers is likely to be in these areas of the law:

Trademark infringement/dilution. The applications cause confusion and deceive customers into thinking that the publisher has included the links and thus endorses them.
Misappropriation. The companies producing these browser add-ons are making money from the unauthorized commercial property of others.
Copyright infringement. This might come into play because the browser add-on companies that create new links are creating unauthorized derivative works.
Violation of advertising laws and unfair competition.
Interference with business relationships. In the case of Gator, it may make it more difficult for publishers to sell advertising.

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'Scumware'

Web publishers are increasingly angered by the tactics of companies producing browser add-ons like TopText and Surf+. A new Web site debuted this week, Scumware.com, that purports to lead the fight against software that places unauthorized links on Web site content. If you visit the site, a script will check to see if you have either of those applications installed -- and offer instructions on removing them and why you should. The site also lobbies advertisers to not purchase ads from "scumware" companies.

The Scumware site also suggests techniques for blocking your Web site from being affected by these software applications.

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Editor's note: Steve Outing's next column will appear Wednesday, Sept. 12.

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Other recent columns

In case you missed recent Stop The Presses!, here are links to the last few columns: Spam Fighters Block Legit E-mail, Wednesday, Aug. 15
Publishers Should Open Creativity Faucets, Wednesday, July 25
A Whack on the Head for Online Media, Wednesday, July 11
Audiences Aren't Deserting the Web, Wednesday, June 27
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