Gator.com offers a free download that comes in two parts. First,
there is a Form Helper, a piece of software that automatically
completes on-line forms with stored information. The other part of
Gator is an OfferCompanion, which monitors web surfing and delivers
targeted pop-up ads. For example, if visiting Amazon.com today,
Gator will display an advert for a rival site, Half.com, offering
books, movies, music and games, with “everything for 1/2
price!”
The Gator Corporation claims that its service has 22 million
users, although many are acquired because the company has deals
with other sites offering downloads which will bundle Gator’s
software with applications such as KaZaA, the P2P file-sharing
service.
The Washington Post, Tribune Interactive, The New York Times,
Dow Jones and six other publishers this week sued Gator in a
Virginia federal court, alleging copyright and trade mark
infringements and unfair competition. The filing describes Gator as
“essentially a parasite on the web that rides on the hard work and
the investments of [the publishers] and other web site owners.”
The publishers argue that Gator’s delivery of ads is altering
the intended display of a web page that is protected by copyright.
They are seeking an injunction to stop Gator continuing its
practices, and damages.
Gator has already toned down its practices. Until last year, it
would recognise a banner ad on a web site and obscure that ad with
a different ad of the same dimensions from one of its own
advertisers. The Interactive Advertising Bureau (IAB) criticised
Gator.
In response, Gator sued the IAB for “libellously disparaging its
service” and causing the company to lose sales. Gator later settled
its dispute with the IAB out of court, agreeing to stop obscuring
the banners of others.
A major problem for the publishers will be the question of who
should control what a user can see on a web page.
Struan Robertson, editor of OUT-LAW.COM, said:
“By downloading the software, users accept
Gator’s practice – albeit the detail is contained in a long licence
agreement which few are likely to read. If at any time they get
tired of Gator, they can simply uninstall the software.
“Effectively, Gator is giving the internet
user new powers to control what he sees on a web site. Aggrieved
advertisers and web site operators may struggle to stop that
because the user already has wide powers to control what he sees.
For example, it’s easy to set your browser to disable all graphics,
which in effect cancels all banner ads, thereby altering the
intended display of a web page.”
Gator's CEO Jeff McFadden said yesterday:
"We're highly confident that the allegations
made by the plaintiffs are utterly baseless, and that the business
practices we've employed for years with over 400 customers
(including over sixty Fortune 500 companies) and 22 million active
users are legal.”
McFadden says that on the “flawed logic” of the publishers, “any
software application that automatically displays information in a
separate window, from ad-supported products like AOL Instant
Messenger and Yahoo! Messenger, to standard applications like
Microsoft Outlook and Norton Anti-Virus - would be illegal.”
McFadden added that one of the parties bringing the lawsuit has
been one of Gator’s biggest customers and is responsible for
sponsoring the majority of the pop-ups that appeared on its rivals’
web sites, including WallStreetJournal.com, WashingtonPost.com,
USAToday.com.
According to WashingtonPost.com, WeightWatchers.com successfully
sued a rival over Gator’s practices, without involving Gator
itself. DietWatch.com was ordered by a court to stop its ads
appearing when Gator users visited WeightWatchers.com and it was
ordered to pay damages to its rival of $25,000.
