Security /

Whose Web page is it, anyway?

By M. E. Kabay
Network World Security Newsletter, 05/22/02

In the first two newsletters of this short series, we looked at scumware, the name some people use for software that modifies the appearance of Web pages without permission from the people who created those Web pages. In this newsletter, I will review some of the ethical and legal issues underlying the trouble over scumware.

In particular, the question comes down to who owns the image of a Web page when it's in a browser window?

Gator, you may remember, deliberately overlays banner ads with its own choice of advertisement. Gator points out that its ads can be moved and that they are clearly labeled as coming from Gator. But the practice has attracted the ire of the Interactive Advertising Bureau, among others, and last year Gator sued the IAB for some statements it had made.

A look at the IAB's Aug. 28, 2001, press release shows an uncompromising title (caps are in the original): " INTERACTIVE ADVERTISING BUREAU (IAB) ASSERTS GATOR.COM'S BUSINESS PRACTICES VIOLATE THE CONTRACT, TRADEMARK AND COPYRIGHT INTERESTS OF WEB PUBLISHERS AND ADVERTISERS: UNFAIR COMPETITION AND DECEPTIVE PRACTICES IN VIOLATION OF FEDERAL LAWS. "

Before we go any further, let me warn readers using the mandatory disclosure that I am not a lawyer and this is not legal advice. For legal advice, consult and attorney experienced in these areas of intellectual property and contract law.

From my point of view as a lay observer, the arguments presented by the IAB and other opponents of scumware boil down to the following (and I am using the generic " scumware " instead of focusing only on Gator's products):

* Scumware makes unauthorized changes in the appearance and content of Web pages that affect more than a single user.

* The changes imposed by scumware interfere with contractual relationships between Web content providers and advertisers.

* The introduced advertisements and links may convey a false impression implying relationships and possibly endorsements that do not exist.

* The modifications may be creating an unauthorized derivative work.

European laws are more restrictive than U.S. laws in defining what are called the " moral rights " of not only a copyright holder but also the rights of the creators of intellectual property. Scumware, under this doctrine, may violate the content-creator's rights of integrity, disclosure, retraction, and replies to criticism. Unauthorized modification of what users see on a Web page may violate all of these rights.

Those opposing scumware will have to articulate why they don't also go after firewalls and ad-blockers that speed up Web access by reducing the amount of graphical data transmitted to a browser. Perhaps one factor reducing the outrage over _blocking_ ads is that no one is going to be offended by _not_ seeing an ad. Although the advertisers may not like the idea, at least there is no chance of casting the Web site in a false light (an important element of the concept of defamation in U.S. jurisprudence).

From a purely ethical (as opposed to narrowly legal) standpoint, it seems to me that scumware is a bad idea on several grounds:

* The people who benefit from the introduced materials (links and ads) are not the people who invested time and money in creating the underlying content; this situation seems unfair.

* If everyone engaged in such behavior, Web pages could become cluttered with extraneous matter and obscure the underlying content entirely - just imagine running several different scumware programs at once to see what might result.

* Obscuring other people's messages and adding unauthorized linkages seems disrespectful of the human beings who created the original Web page; such behavior seems to me to be disregarding the Web designers' feelings and intentions.

In the final installment of this series, we'll look at avoiding and getting rid of scumware.