USS Clueless              Voyages of a restless mind

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Stardate 20010817.0649 (On Screen): Free speech is a tricky thing. I have a right to speak freely, but I don't have a right to demand that anyone listen to me. Freedom of expression is actually legally a negative, not a positive. It doesn't say that someone has a right to get their message out, rather it says that the government isn't permitted to prevent them from trying. Within certain limits, other private individuals aren't, either. But there is no legal or moral guarantee or requirement for success. If you stand in the middle of the wilderness and shout your message to the trees, you're still free. (It's just that that better not be the only place you can do so.)

Do advertisers have a freedom to advertise? Yes, they do. Advertisement is speech, and is protected as such. But they do not have a right to insist that people read their advertising. That said, there's a tendency to assume that if someone has been doing something for a long time that it is an entitlement for the future. That seems to be what's going on here. There is a plugin called "Gator" which some people install which does some useful things for you but which also creates popup advertising. It keys the advertising to specific web addresses, so for instance someone visiting USS Clueless might see a popup advertisement for rival site Disenchanted. I think I wouldn't care, really, but where it's really getting the hackles up is that some companies are buying the rights to have their advertisements pop up at competing companies' web sites.

Now Gator has taken the next step, and it's a doozie: they place floating windows containing banner ads on top of the locations where other banner ads would appear on certain web sites. So a popular site like Yahoo (for instance) can put its own banner ads up, but a user with Gator installed won't see them. Instead, they'll see the ads that Gator has sold. Needless to say, sites like Yahoo take a dim view. Something Must Be Done.

I don't think anything can be done. If Gator were messing with Yahoo's server then they'd be violating the law. But they aren't. They're displaying things on a computer screen with the permission of the owner of that computer.

Here's the case I expect someone to make, against this: My web page, in its entirety, is a copyrighted work. Under copyright law, I have control not only over my page but also over all derivative works. If someone takes my page and alters it by removing advertising or by altering the advertising, the result is a "derivative work" and creating it requires my permission under Copyright Law. Since I have not and will not grant such permission, then it is actionable. The answer to that is "fair use". Copyright law has never dictated how the end-viewer of the work utilize it. If I buy a newpaper, I can legally cut out one part of it and save it for future reference. That is also a "derivative work" but I still have the ability to do that under Copyright law. I am not required to archive the entire newspaper, or to leave advertising attached to the article I cut out. Copyright law does not give the creator of a work the ability to force the viewer to observe the entire work. Viewers have always had the right to pick and choose, and the use by viewers of machines to help in the filtration process doesn't alter that.

In the long run, this is yet another nail in the coffin of the ad banner. The attempt to treat the web as a paperless magazine has failed. Gator is an example of how advertising can take advantage of the unique aspects of the web, and since it's better adapted to the environment, it's going to out-compete the old ill-adapted model. Survival of the fittest! (discuss)

Update: Of course, one thing that Gator is doing by this is to divorce advertising from content creation. Gator's advertising is essentially parasitic, with no revenue deriving back to the creators of the web pages on which Gator's advertising is featured. Thus it is ultimately unsustainable. But then, the ad banner is also unsustainable, as evidence has shown.