An Apple™ a Day Won’t Keep Lawyers Away…
June 22, 2010Council Member Joseph Jacobson has an interesting issue for us to ponder…
If Apple were to create a system so that if you request a page, such as www.seclaw.com, which has banner ads and other ads supplied by both Google and Amazon.com, what if Apple, instead of just blocking the offending advertising, replaced Google’s ads with its own?
Does this substituting in some way affect the copyright of the page?
Does the copyright include the ads around the editorial material, as a compilation?
Is this action, or even the lesser action of just blocking an ad instead of replacing an ad, a tortious interference with contract? [A famous Texas tort. but one not available everywhere.]
The wrongful tortious interference would be Apple’s screening and substitution denies the Web site owner of the economic benefit, provided by Google.com and Amazon.com of click-throughs, The content provider also loses Google’s and Amazon’s tracking of use, and calculation of Google’s, Yahoo!’s, or Bing’s search engine ranking, etc.
It seems to me, a plaintiff could make the argument that, but for the ancillary income from Google and Amazon, the Web page would be unavailable to anyone.
What if someone grabs your newspaper at 4:30 in the morning and tapes a Nordstrom advertisement of the same size and shape over a Neiman-Marcus advertisement?
You see the same editorial, but aren’t the experiences really different?
Sometimes advertisers and media companies operate under rules for placement, and substitutions may not honor such rules.
One rule may be that in no commercial break, there are 2 car advertisements for different brands, with one following the other. Or there are not 2 competing cereals advertised next to each other, etc. You get the idea.
The same is true in magazine layout. Companies pay premiums to be on the inside cover, the back cover, for spreads, and if Apple substitutes its advertising, the advertisers are losing value, and so are the editorial content providers that are trying to generate income from the advertising from services such as Google, Yahoo, Bing, and Amazon.com.
Does the advertising benefit have to be visible, since there still is a value for search engine rankings, based upon data from coolies, Web browsers, etc.?
What if a carrier such as Sprint decided to substitute its ads for Google’s ads?
Do developers of operating systems and Internet Service Providers have different obligations to consumers? Different rights? Different regulations?
Discuss…
UPDATE: Here is Steve Jobs explaining the new mobile advertising platform, iAd™.
seems related to “in text” advertising like that offered by http://www.infolinks.com/ – when added by a webmaster to existing content, certainly there are no issues. On a public message board (e.g., this one), the links can come as a surprise to posters who had no idea that they’d wind up as contributors to an advertising campaign. Clear terms of service may obviate any legal issues, of course.
In your scenario, does Apple have a duty that requires it to deliver the web pages unaltered? If a site has click through terms of service for its viewers, does that form a contract between the site operator and the viewer with which the superimposed ad (perhaps whether it replaces another ad or not) is now tortiously interfering? I realize I’m only asking questions here…
I guess it would depend on how Apple’s software goes about “replacing the ads with its own”. Is it altering the website owner’s code and thus may involve hacking and tampering issues? Is it simply displaying the new ads in front of the others via the browser software and thus not touching the site’s code (either the website owner’s or the advertiser’s)? Seems like it’s going to be less of an issue of tortious interference or copyright and more of etiquette. Would be similar to erecting a billboard on the highway in such a manner as to block another billboard from view of passersby.