(a) U-Haul v. WhenU.comIn U-Haul Int’l Inc. v. WhenU.com, Inc.,^3332 U-Haul alleged that WhenU’s SaveNow
pop-up ad program constituted copyright and trademark infringement and unfair competition.
SaveNow was generally bundled for distribution with other software programs, such as
screensaver programs. It was distributed with a clickwrap license agreement. Utilizing a
directory of commonly used search phrases, commonly visited web addresses, and various
keyword algorithms, the SaveNow program scanned the user’s Internet activity to determine
whether any of the terms, web addresses, or content matched the information in its directory.
Upon detecting a match, the program identified an associated product or service category, and
then caused a pop-up advertisement to be selected from WhenU’s clients which matched the
category of the user’s activity. The ads appeared in a separate “WhenU window” on top of all
other windows visible on the computer’s screen, including the window of the user’s selected
destination web site.^3333
The court rejected U-Haul’s arguments that SaveNow infringed its exclusive rights of
display and derivative works. With respect to the display right, U-Haul argued that SaveNow
unlawfully caused its web site to be displayed together with WhenU’s pop-up ads. The court
rejected this argument, noting that the user, not SaveNow, was the one who called up the U-Haul
website. The SaveNow program did not alter U-Haul’s web page in any manner, and the
SaveNow window in which the ad appeared bore no physical relationship to the window in
which the U-Haul web page appeared.^3334
With respect to the derivative works right, U-Haul argued that the SaveNow program
created an infringing derivative work by retrieving the U-Haul web page, placing its own
advertisement on that Web page, then displaying it to the user. The court ruled that no derivative
work of the U-Haul web page was created. First, the WhenU window was a “distinct
occurrence” from the U-Haul web page, rather than a single integrated work, and the appearance
of a WhenU ad on the user’s computer screen at the same time as a U-Haul web page was “a
transitory occurrence that may not be exactly duplicated in that or another user’s computer.”^3335
Second, although the pop-up ad altered the user’s computer display, the alteration was not
infringing. “To conclude otherwise is untenable in light of the fact that the user is the one who
controls how items are displayed on the computer, and computer users would infringe
copyrighted works any time they opened a window in front of a copyrighted Web page that is
simultaneously open in a separate window on their computer screens.”^3336
Accordingly, WhenU was entitled to summary judgment on U-Haul’s claim of copyright
infringement.^3337 The court also rejected U-Haul’s trademark claim on the ground, among
(^3332) 2003 WL 22071556 (E.D. Va. 2003).
(^3333) Id. at 2.
(^3334) Id. at 6.
(^3335) Id. at *7.
(^3336) Id.
(^3337) Id.