Mousetrapping 2: On to Use of Hyperlinking

Use NS 6.1+ or I.E. 5+, 800 x 600 screen recom.


Curiously, Zuccarini is a copyright theoretician in addition to his other interests. In the Wall Street Journel case, he got into a dispute with Dow Jones (owner of WSJ) and the URL regulatory body (WIPO) over the legality of linking. (Bear with me, this is going to get us back into the main subject matter of the course.) Dow accused Zuccarini of providing links on his sites to the sites of other businesses, such as a credit card issuing company and apparently to WSJ as well. Apparently, Dow objected to the links on the theory that, by itself, or perhaps in conjunction with his use of the Journel misspelling for his site, the linking created public confusion as to who sponsored or was associated with Zuccarini. Dow sought to draw the conclusion that this creation of confusion because of his use of links was another reason to extract the Journel URL from him and to transfer it to Dow (as eventually occurred).

Zuccarini on Linking

Zuccarini indignantly and articulately responded:

To say, even if I did have links to The Wall Street Journal, I would need to be authorized by them to have these links is outlandish. I do not need permission from The Wall Street Journal to link to their web site from any web site I own. That is my right. The Internet is much more than just links, but if the Internet is anything, it is millions and millions of pages with links on them. Is The Wall Street Journal proposing that these millions and millions of links [must] all have official authorization?

Probably, the weight of commentary and such little precedent as now exists favors the quoted passage. Linking, at least per se, is not infringement of IP rights, is privileged, and is socially beneficial. Use of the Internet, and Internet research in particular, depend on them.

Changing the Facts

Mousetrapping represents perhaps the polar extreme of obnoxious Internet marketing and advertising behavior. It may be even more obnoxious than spamming. Nonetheless, mousetrapping per se may not implicate IP law, and may not even violate FTC Act § 5 in all circumstances. For example, consider a case without the porno aspect. (Or consider mousetrapping where the Back function is impaired but not the X button.) Or the amount of mousetrapping is limited to a few popups as in the alert box demo at the beginning of the preceding page. The FTC's unfairness analysis in the Zuccarini/Cupcake case may then no longer hold. Is there still substantial, unavoidable consumer injury when the facts change as described?

Furthermore, assume no pagejacking or similar deceptive conduct. (There apparently was no pagejacking in the FTC's Cupcake case, although there was in prior FTC litigation against mousetrapping.) Are we into a far-fetched hypothetical? With Zuccarini's business model, that may be so. Perhaps, the decreased coercion and oppression weigh against the success of the business model, which is based on very short-term gain and advertiser clients that are indifferent to the exasperated sensibilities of those who become resentful when thrust into the mousetrap. It may be that letting the user off more easily would stop the system from generating such high revenue (25 cents per redirection is a very high rate by current standards, but these sites apparently can afford it).

But not all users of mousetrapping are porno sites. (Even Zuccarini's clients included a credit card issuing company, psychics, and gambling casinos.) In fact, mousetrapping and conduct very much like it (I'll get into what that means) is pervasive on the Internet. It is practiced by some of the most well known corporate Internet users. Presumbably, they selected its use in marketing because it pays off.

These practices aid the marketer in inducing purchase behavior from customers. A key element in this marketing system is getting the user to the site and making the user hold still long enough for the advertiser to expose the user to advertising. Perhaps that can evoke some mouseclicks to put the advertiser's product into the user's shopping basket. (If the "broker" who forwards the user is a third party, rather than the product's seller itself, the seller then pays the broker for the "hit.") Almost everyone on the Internet does something like that to some degree.That's why you see all of those links to Amazon.com everywhere and why search engines have customer-query targeted advertising on their pages.

Not all of that is coercive enough to earn the mousetrapping label. But a surprising amount of it is. Here is a short list of more or less reputable companies that keep you mousetrapped on their Web pages. I have provided links so that you can form your own judgment whether they are mousetrappers. Their scripts either keep you on the same page indefinitely and refuse to let you go, or they put up different successive screens if you do not want to buy whatever they want to sell you on the first screen (for example, endlessly offering subscriptions to different magazines -- "More Great Deals!" -- in the hope that you'll finally find one that you like). The scripts perform differently on different browsers; some browsers are harder to trap. Parenthetical references are to browsers that I tested and found were trapped.

Some of Corporate America's Web Site Mousetrappers

Name and Link Description of Business
Pepsi-Cola (NS4) Beverages
Digital River (IE6) E-commerce marketing consultant
Magazine Outlet (IE6) Seller of magazine subscriptions
Kellogg's (IE6) (NS4) Cereal, Pop-Tarts

For a more extensive list, where I found these, see Top9.com's Lock-in list. Top 9.com is a provider of Internet advertising statistics.

In some cases, the corporate seller does not itself capture the viewer in the first instance. For example, the Kellogg's mousetrap site operates with viewers redirected to it from The Cartoon Network, Inc. (AOL Time Warner). TCN redirects viewers to the Kellogg's site in essentially the same manner that Zuccarini redirects viewers to his clients' sites, and presumably for a payment. The more you study this, the more it all looks the same, or at least it appears to be more on a continuum than a case of black hats and white hats.

Getting the User to a JS

So what's going on here? The idea is to get the user to a Web page (corresponding to the first Site Page in my mousetrapping demo) at which the system operator can include his own JavaScript or similar code. To mousetrap a user, the trapper needs to get his own code into RAM on the user's computer, in order to control the displays on the computer and maintain the trap. Is this unfair per se, for purposes of FTC Act § 5? Probably not, at least under the current legal standard as invoked in the Zuccarini case. The examples tabulated above of mousetrapping (or similar practices) by corporate America lack the "plus" elements that put the FTC's cases "over the top" against its adversaries. There is no porno and there is no overt false representation about sponsorship. The substantial and unavoidable injury to consumers alleged in earlier FTC cases seems to be missing. There is just some annoyance, probably some very bad Netiquette. Probably, having a hundred successive magazine subscription offers jammed up your nose before you pull the plug on your computer won't stifle the progress of the Internet. (Actually, it usually isn't even that bad or unavoidable, because most of the sites let you hold the browser Back button down to select and escape to a much earlier page. Unlike Zuccarini, they do not say, ''All your Back function are belong to us.'')

But how do you get the user to a JavaScript, preferably without unduly antagonizing the user? Most of the sites attract their customers by whatever ordinary means they have used in the past. Then they use the JavaScript to hold the users a little longer, to make the site "stickier." The Kellogg's site attracts users with the copyrighted cartoon content that TCN provides (for a fee). That use is licensed, so that there is no copyright infringement.

What else could you do to get similar results? One technique is to use iframing, or framing in general, as in the Total News case. (Ordinary framing is harder to manipulate than iframing.) That is a way to get users to a page on which you can place your own code to seize control of the user's computer. Consider iframing some material from a cartoon site, as in this demonstrative example. Must one pay the owner of the copyright in the cartoon for iframing it? That is, is it copyright infringement to use a cartoon (say, Dilbert or Snoopy) in a frame without a license? As will appear, in the discussion in the related L.H.O.O.Q. pages, that question triggers a series of further questions about whether the conduct involves unauthorized preparation of a derivative work, whether the resulting derivative work is infringing, and whether an affirmative defense such as fair use or license excuses the infringement.

The earlier alert box and status bar demos, and the other demos on framing, show that it is possible for an actor to place the actor's own HTML code on a page that frames or otherwise utilizes another's content. The net effect is then to permit the actor (operator of the framing page) to commingle or associate the actor's advertising material with the other person's framed content, thus using the other person's content as bait for the user. Unless this is deemed the unauthorized preparation of a derivative work, ala Mirage, copyright law does not provide a remedy. It is simply damnum absque injuria, or to use another term of art, tough luck.

And as Annie Lee's rejection of Mirage shows us, not every collocation or juxtaposition is a preparation of a derivative work -- or, more to the point, grounds for infringement liability. So, think some more about the messages in the second status bar demo.

Recently, Internet marketers have turned to a further step in associating one person's advertising with another's content. This expedient does not simply place the actor's material near or next to the underlying content. Instead, it effectively superimposes it on (layers it over) the other person's content. The next Mousetrapping page turns to this extreme form of hyperlinking, which its more incensed detractors have termed "scumware."

[End of Page 2.]     [Link to Page 3 of Mousetrapping materials.]