NONE: Re: ONLINE-ADS>> Peter Bull's fanciful "ad piracy" hypothetical
Re: ONLINE-ADS>> Peter Bull's fanciful "ad piracy" hypothetical
Mark J. Welch, Esq. (markwelch_at_ca-probate.com)
Tue, 25 Nov 1997 23:46:12 -0800
I was fascinated by Peter Bull's hypothetical in which a local
ISP "substitutes" the ISP's own paid ads for the paid ads on
web site content pages, thereby shifting the profit from the
web pages from the site to the ISP.
I'm not certain how this would fly under the laws of other
nations, but under the laws of the United States and of
the State of California, I can think of at least a half-dozen
legal theories that would trigger immediate issuance of
an injunction and an award of huge damages against
the ISP for doing so. This is one area where I would be
pleased to step out of my shell as an estate planning
and probate attorney and take on this type of case
(even on a contingent-fee basis) because the law is
so clear. (My primary concern would be determining
that the defendant and/or the pirate advertisers have
assets sufficient to pay for my fees and some amount
of damages to the site.)
While I can't offer a legal opinion as to the laws of
other U.S. states or of other nations, I certainly am
99% sure that Mr. Bull's hypothetical would violate
the laws of nearly all of the 100+ nations that have
signed either of the major international copyright
treaties, and quite probably would be illegal in every
nation with more than a trivial internet presence.
Let's not go overboard: surely there are technical ways
to divert advertising opportunities, and some web
publishers may agree to allow such "local advertising"
(just as local TV stations get to run local ads during the
network TV programs) in exchange for some type of
compensation. But what is technically feasible is
NOT the same as what is lawful, and ultimately the
law is not going to allow pirates to divert all the
revenue opportunity derived from the creation of
intellectual property (such as "web content") to
third parties who have no investment in such works.
Nor would that business model survive even if it
were lawful, since content providers would simply
cease all internet postings if the promise of revenue
were lost.
As a content provider, I am very protective of my
work, not only from a pure revenue-capture point
of view, but also in terms of the editorial integrity
of my product. I would not permit certain types of
advertisements to appear on my site, and if they
were inserted without my consent by third parties
I would take legal action. (Of course, it might be
difficult for me to identify and react to the type of
scenario in Mr. Bull's hypothetical, but this would
likely just make me more aggressive if I did catch
on at some time, and would even enhance the
damages I would receive.)
-- Mark J. Welch, Esq. (510) 462-8483 http://www.ca-probate.com/
-- Note: area code will change in April 1998 to (925)
-- Web Site Banner Ads and Web Counters: http://www.markwelch.com/
-- Small Office / Home Office Consumer: http://www.sohoconsumer.com/
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