apparently noted that it was unclear whether the pop-up ads had caused substantial injury to
consumers.^3375 As of the writing of this paper, the litigation was ongoing.
- International Decisions
In March of 2004, a the Court of First Instance in Cologne, Germany, issued a
preliminary injunction against Claria (formerly known as Gator) that prohibited the company’s
pop-up and pop-under ads from appearing over Hertz’s German rental car web site. The court
concluded that Claria had violated various sections of a German unfair competition law.^3376
H. Harvesting of Web Data
Harvesting of web data using robots and subsequent use or posting of the harvested data
is a common occurrence on the Web and can be expected to generate much litigation in the
future over claims of copyright infringement and the DMCA. A number of cases are beginning
to emerge:
- The FatWallet Dispute
Shortly before Thanksgiving of 2002, FatWallet.com posted on its web site a list of
products and prices scheduled to appear in advertisements on “Black Friday” (the day after
Thanksgiving, when by urban legend retailers go “in the black” and start to make money). The
products and prices had apparently been harvested from web sites of various retailers. Wal-Mart,
one of the companies whose data had been harvested, wrote a letter to FatWallet demanding the
takedown under the DMCA of its product and pricing data on the ground that such data
constituted a copyrighted compilation. Wal-Mart’s attorneys also issued a subpoena under
Section 512(h) of the DMCA asking for “information sufficient to identify the individual who
posted the infringing material.” Wal-Mart backed down on its demands after the Samuelson
Law, Technology & Public Policy Clinic at Boalt Hall School of Law agreed to represent
FatWallet and fight the subpoena.^3377
- Nautical Solutions Marketing v. Boats.com
Boats.com operated a web site, Yachtworld.com, on which subscribing yacht brokers
posted listings of yachts for sale. Nautical Solutions Marketing (NSM) opened a competing web
site known as Yachtbroker.com. NSM offered two services that Boats.com alleged were
infringing of its copyrights. First, NSM used an Internet spider called Boat Rover to extract
public yacht listing data from Yachtworld.com and other sites, such as manufacturer, model,
length, year of manufacture, price, location, and URL of the web page containing the yacht
(^3375) “FTC Denied Injunction Against Software Firm’s Intrusive Pop-Up Ads” (Dec. 15, 2003), available as of Jan.
17, 2004 at http://24hour.startribune.com/24hour/technology/story/1089101p-7607955c.html.
(^3376) Dawn Kawamoto, “German Court: Pop-Ups Need Permission” (Mar. 26, 2004), available as of Mar. 29, 2004 at
http://www.news.com.com/2100-1024_3-5180240.html.
(^3377) Declan McCullagh, “Wal-Mart Backs Away from DMCA Claim” (Dec. 5, 2002), available as of Dec. 8, 2002
at http://news.com.com/2102-1023-976296.html.