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Old 07-13-2002, 12:33 AM   #31
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Well I've only got two words:
WOO HOO!
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Old 07-13-2002, 05:56 AM   #32
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With this injunction, and the earlier WeightWatchers.com vs DietWatch.com thing, presumably any publisher could get a similiar injunction against gator? And if a load of publishers filed suits and got similair injunctions pending trials, gator would stop making money.

I guess it could get scarily expensive for small publishers - but then, the biggest advertising contracts are with big companies, so i'm hoping that more big publishers will follow with their own suits/injunctions ASAP.
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Old 07-13-2002, 09:12 AM   #33
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Quote:
Originally posted by maddeningcrowds
I guess it could get scarily expensive for small publishers...
If NY Times et al. do succeed against Gator, and the company chooses to continue trading, the path could be open for a class action suit against them, which would enable smaller publishers to seek damages without incurring massive costs on an individual David & Goliath level.

Given the damage that would (rightfully, imho) be done to Gator's brand if they do lose such a high-profile case, though, it's relatively likely that a loss would result in them shutting down the business.

Let's face it, if they're unable to plaster ads across third-party sites without permission, they lose their core revenue base, and developing form-filling software just doesn't drum up the kinda cash that it used to.
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Old 07-13-2002, 01:45 PM   #34
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Ari/Aristotle,

Thanks so much for your legal/attorney view. Members, you may want to read that post which appears at the bottom of page 2 of this thread. This helped me understand exactly what the Judge ruled on in:

Memorandum in Support of a Motion for Preliminary Injunction:

http://www.gibsondunn.com/Media/WP_Motion.pdf

Summarized in the Table of Contents and all the details in pages 17-28.


The problem with Mr. McFaddens/Gator statement in the last news article in this thread:

"Such a ruling would attack a consumer's right to use hundreds of popular software applications that automatically display separate windows while the consumer is surfing the Internet."

My non-lawyer view of this staement: It's not germaine to the case. Yes it may be a very minor issue in the defense but a carefull reading of the complaint will tell you that the Plaintiffs claims have for the most part nothing to do with a .."consumers right ..." and Gator would be ill advised to use this "consumer" defense. Plus the posibility that if and when a jury hears what the issues are and what Gator is doing to their computers and some of their favorite sites (all but one are free to read), this "consumer" defense could work to the benifit of the Plaintiffs.

So exactly what are the issues?

From the complaint:

http://www.gibsondunn.com/Media/WP_Complaint.pdf

Count I Trademark Infrigment
Count II Unfair Competition
Count III Trademark Dilution
Count IV Copyright Infringement
Count V Contributory Copyright Infringement
Count VI "Hot News" Missappropriation
Count VII Interferance With Prospective Economic Advantage
Count VIII Unjust Enrichment
Count IX Violation of Va. Business Conspiracy Act

HTH
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Old 07-13-2002, 03:08 PM   #35
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Default Slightly random thoughts

Gator are going with the 'consumer' line because its the only way they can present themselves in a reasonable light. The argument is that surfers *choose* to download gator and agree to the terms and conditions when they install it and its accompanying programs. Of course, users don't really understand what the gator install will actually do, but they do agree to it nonetheless.

However the main crux of the law suit as I understand it is not about advertising really, but about the copyright holders right to dictate how their information is presented. So it doesn't really matter what consumers agree to. For example, a 'white label' remix of a pop tune is a copyright violation regardless of whather a consumer enjoys it or purchases it.
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Old 07-13-2002, 03:12 PM   #36
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Quote:
Originally posted by Czar
If NY Times et al. do succeed against Gator, and the company chooses to continue trading, the path could be open for a class action suit against them, which would enable smaller publishers to seek damages without incurring massive costs on an individual David & Goliath level.

Given the damage that would (rightfully, imho) be done to Gator's brand if they do lose such a high-profile case, though, it's relatively likely that a loss would result in them shutting down the business.

Let's face it, if they're unable to plaster ads across third-party sites without permission, they lose their core revenue base, and developing form-filling software just doesn't drum up the kinda cash that it used to.
Gator had better close down the business FAST if/when they lose this case. Because even if they stop plastering ads on everyone's sites publishers can still start a class-action suit for past deeds and damages.

I would love for one large publisher to get a class action filing going. Then force Gator go give up a list of EVERY SITE their software worked on (or should I say worked over) and then include every one of those publishers in the class-action suit. It would surely break them.

DIE GATOR DIE I SAY!
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Old 07-14-2002, 01:40 PM   #37
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Default Gator Ordered to Stop "Pasting" Banners!

Just spotted a great story at News.com (http://news.com.com/2100-1023-943515.html?tag=fd_top)

Quote:
A federal judge on Friday ordered software company Gator to temporarily stop displaying pop-up advertising over Web publishers' pages without their permission.

The order was issued in a lawsuit filed against Gator in June by The Washington Post, The New York Times, Dow Jones and seven other publishers, which allege the company's ads violate their copyrights and steal revenue.

On Friday, Judge Claude Hilton granted the motion, according to the clerk's office at the federal court in Alexandria, Va., where the suit was filed.
Gator CEO had this to say (total diatribe as usual)

Quote:
"We are highly confident that once all the facts are presented in the upcoming trial, no court will issue a ruling eliminating a consumer's right to decide for themselves what is displayed on their own computer screens," Gator CEO Jeff McFadden said in the statement.
Things are looking up, dont you think?

<Admin says: Thanks. Merging this thread with our sticky thread.>

Last edited by Steve_S; 07-14-2002 at 02:06 PM.
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Old 07-14-2002, 10:48 PM   #38
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I am not an attorney

I am not so sure that it follows that even if these publishers win, other sites can then go to a class action.

The reason I say this is...

These publishers have trademarks, and highly recognized ones at that. If it is decided that Gator infringes or dilutes their trademarks... it doesn't automatically follow that Gator is infringing/diluting other trademarks. Plus other sites may either not have trademarks, or have less (or more) valuable trademarks.

Similarly for the copyright. Even if it is decided that Gator is infringing copyrights of these publishers, then for other sites both the merits of the claim, and the values of the copyrighted material are likely to be different.

So, to summarize, I am not sure that the merits of cases, and the value of the damages, can be extended logically (or legally) to other sites where the circumstances are different.

My opinion of what might be more likely, is if these publishers win, it might establish a precedent making it easier for other publishers to win separate litigation.

As I said at the start - I am not an attorney - so I don't know the above for certain.
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Old 07-15-2002, 03:34 PM   #39
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I have number of attorney friends and from what I am being told as of right now Gator is not loosing at all. It is a common practice in law to stop company activity till the case begins and judge can decide on the case. On the other hand Gator is getting tons of free publicity right now and if it wins the case every single fortune 1000 marketing executive will know about Gator, and chances are some will go ahead and open advertising accounts with Gator. Only time will show who will show who will benefit from current events!
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Old 07-18-2002, 05:10 PM   #40
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Quote:
Similarly for the copyright. Even if it is decided that Gator is infringing copyrights of these publishers, then for other sites both the merits of the claim, and the values of the copyrighted material are likely to be different.
But the claim isn't about the value of the copyrighted material, but the right of the copyright owner to choose the form in which his/her material is presented. Whilst certain forms of 'borrowing' copyright matreial - such as in satuire or parody - are considered 'fair use', this is not such a case.

To continue my previous example, a 'white label' remix of a pop tune is a copyright violation regardless of what the value of the original tune was, or how well the artist was known, or whether the band's name was a trademark.
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Old 07-18-2002, 05:31 PM   #41
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Quote:
Originally posted by cyrex
I have number of attorney friends and from what I am being told as of right now Gator is not loosing at all. It is a common practice in law to stop company activity till the case begins and judge can decide on the case. On the other hand Gator is getting tons of free publicity right now and if it wins the case every single fortune 1000 marketing executive will know about Gator, and chances are some will go ahead and open advertising accounts with Gator. Only time will show who will show who will benefit from current events!

<Welcome again to GeekVillage Business School - Course 102>

How so? Gator is loosing $$$ and has been from the moment they removed the pops from the targeted sites (Plaintiffs) The only way Gator is NOT loosing is if they ran (past tense) those targeted campaigns at the Plaintiffs sites for free, which is rather unlikely

If you mean the offset between the "ink" they (Gator) are getting and the loss ad revenue from their customers who were (past tense please) targeting the Plaintiffs sites, then thats yet another issue which we can hammer out in another class, consistent with the Business School's rules
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Old 07-19-2002, 12:18 AM   #42
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Steve one thing to remember is that Plaintiffs sites didn't represent big part of Gator's revenue, and until the judge decides the outcome of this case, Gator will still show ads on other sites. While I do belive that Gator biz model is not fair to webmasters, I am really scare that governement involment in the issues like this will go against the whole point of American market economy. I would rather see companies develop anti-gator software for webmasters to install then goverment getting involved in the whole thing.






Quote:
Originally posted by Steve_S



<Welcome again to GeekVillage Business School - Course 102>

How so? Gator is loosing $$$ and has been from the moment they removed the pops from the targeted sites (Plaintiffs) The only way Gator is NOT loosing is if they ran (past tense) those targeted campaigns at the Plaintiffs sites for free, which is rather unlikely

If you mean the offset between the "ink" they (Gator) are getting and the loss ad revenue from their customers who were (past tense please) targeting the Plaintiffs sites, then thats yet another issue which we can hammer out in another class, consistent with the Business School's rules
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Old 07-19-2002, 03:35 AM   #43
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Quote:
Originally posted by WildComputer
I am not an attorney

I am not so sure that it follows that even if these publishers win, other sites can then go to a class action.

The reason I say this is...

These publishers have trademarks, and highly recognized ones at that. If it is decided that Gator infringes or dilutes their trademarks... it doesn't automatically follow that Gator is infringing/diluting other trademarks. Plus other sites may either not have trademarks, or have less (or more) valuable trademarks.

Similarly for the copyright. Even if it is decided that Gator is infringing copyrights of these publishers, then for other sites both the merits of the claim, and the values of the copyrighted material are likely to be different.

So, to summarize, I am not sure that the merits of cases, and the value of the damages, can be extended logically (or legally) to other sites where the circumstances are different.

My opinion of what might be more likely, is if these publishers win, it might establish a precedent making it easier for other publishers to win separate litigation.

As I said at the start - I am not an attorney - so I don't know the above for certain.

Wildcomputer,
I didn't read the entire filing but I do not believe that Gator is being accused of trademark infringement. Rather, the platiffs are alleging that gator is engaging in unfair competition. Gator's business practices appear to contravene the Shermann act. So a class action suit could be sucessfully brought against gator and its advertisers.
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Old 07-19-2002, 03:40 AM   #44
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Quote:
Originally posted by cyrex
I have number of attorney friends and from what I am being told as of right now Gator is not loosing at all. It is a common practice in law to stop company activity till the case begins and judge can decide on the case. On the other hand Gator is getting tons of free publicity right now and if it wins the case every single fortune 1000 marketing executive will know about Gator, and chances are some will go ahead and open advertising accounts with Gator. Only time will show who will show who will benefit from current events!

Officially, judges aren't allowed to reach conclusions until arguements end. However, the injuction against gator appears to be preliminary indication that the plaintiffs will prevail. My prediction is that Gator will attempt to settle by offering to permanently refrain from advertising upon the plaintiffs' sites.
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Old 07-19-2002, 10:19 AM   #45
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Quote:
Originally posted by Anion



Officially, judges aren't allowed to reach conclusions until arguements end. However, the injuction against gator appears to be preliminary indication that the plaintiffs will prevail. My prediction is that Gator will attempt to settle by offering to permanently refrain from advertising upon the plaintiffs' sites.
You are on the right track. Judges only grant such injunctions when there is a presumtion that the plaintiffs have a case and allowing the defendent to continue will cause harm that can not be undone. They are not just given out on a regular basis. There is a true review done prior to deciding if an injunction should be put in place.

I think the case is a good thing.

DIE GATOR DIE I SAY!!!
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