Lawyer Article

Published in the October 26, 2005 issue of Southeast Tech Wire.

Public outcry against uninvited pop-up advertisements has reached the ears of state and federal legislators. However, the spyware and adware industries have thus far been successful at attacking effective laws in court (see Utah in 2004) or removing the teeth from such laws before they reach a governor’s desk (see California in 2004).

At least 28 states are currently considering legislation to restrict adware from popping unwanted on your computer screen. Another 9 states have passed similar bills. But no one has yet gone as far as Alaska in providing computer users, service providers and trademark holders with legal tools to defend themselves against adware.

The Alaska law, signed by Governor Frank Murkowski on August 30, 2005 not only proscribes the online distribution or installation of adware that causes web browsers to display pop-up advertisements, but it also creates a new cause of action for trademark owners and web site operators, who do not need to demonstrate that the troublesome software infringed on their trademarks. Under the new law, all adware tied to the trademark of another company is unlawful, despite consent by the browser.

Whenever the spyware company makes an advertisement pop up on a user’s computer, and that pop-up advertisement is “displayed in response to a user accessing a specific mark or internet website address purchased or acquired by a person other than the mark owner . . . .” then the pop-up advertisement violates the Alaska law. This approach is a complete departure from other Adware/Spyware acts, most of which address the lack of permission to access a user’s computer, or in the case of the California law and its progeny, only address conduct by the adware/spyware company that was likely to already be illegal under existing law.

Instead, the Alaska law takes the side not of frustrated computer users, as much as frustrated trademark holders. The “evil” described and prohibited in this act amounts to “hitchhiking on the another company’s brand,” by selling the ability to pop a message in front of a person seeking a famous company. In other words, if an internet surfer is seeking the Burger King web site, an advertisement for Wendy’s or McDonalds might pop to the front of her screen – or an advertisement for WeightWatchers or PETA. The Alaska law prohibits the adware company from tying the Wendy’s advertisement or the PETA advertisement to the Burger King website, even if a computer user has granted the adware company permission to do so.

This law bends the rules of the internet to further favor holders of famous trademarks over the consumers’ right to control what appears on their screens, and damages the consumers’ right to decide how they want information presented to them. In addition, the Alaska law also prohibits “purchasing advertising that violates” the rules described above, allowing trademark holders to pursue not just the adware companies serving the offending software, but also the advertisers that paid for the pop-up placement. A claim against such an advertiser will only be successful under the Act where the advertiser “receives notice of the violation [of the law] from the mark owner, and fails to stop the violation.”

Further, the Alaska law specifically allows an internet service provider “after notice to a customer, remove from or disable a program on the customer’s computer” that is used to violate this law or to “collect information from the computer of the customer without the customer’s knowledge.” There is some question as to whether this section of the law runs afoul of the federal Millennium Copyright Act, which prohibits disabling of copyright protections in software. Other sections of the act dealing not with adware, but with distribution of indecent materials online may be questioned in court with regard to their constitutionality.

The Alaska adware law provides a safe harbor for adware companies that request information about a user’s state of residence and only serves its offending ads on non-Alaska residents. The law’s sponsor has said that he feels the technology exists for internet advertisers to discriminate between Alaska web surfers, and those from other jurisdictions.