Adware and Copyright

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The Center for Democracy and Technology (CDT) has just released a report that follows the rising surge of adware, and “follows the money” all the way back to the large companies who are funding the deluge. Most adware applications track sites that users visit, and are able to target advertising based on their online behavior. Nothing wrong with that.

The problem doesn’t just come from adware providers tricking users into installing their ad-serving software. Yes, average Joe user’s computer can become inundated with popup-serving ad software advertising products and services from well-known, big-name companies. Yes, multiple adware infections can slow down their computer and if the problem is ignored, can even render their Internet connection almost unusable. (Most non-technical users don’t even know what adware is, let alone how to clean it out) Yes, it’s an all too common practice and a serious impediment to online advertising, online commerce, and communication over the Internet in general. But the report finds that some advertisers aren’t even aware that their ads are appearing in unwanted adware programs, and they’re the ones funding the whole thing.

The CDT noted 20 companies whose ads appeared in adware from 180solutions. Among them were Club Med Americas, NetZero, PeoplePC, and Netflix. The CDT contacted several of those companies to inform them of the situation and find out what their ad-serving policy was. Some responded, some didn’t. Some, like Netflix, have an expressed policy against association with adware networks, and called the ads appearance a “unique and random” occurrence.

Point: Unless big name companies have completely flipped out and actually want their brands associated with computer-crippling adware, it means that they have somehow lost their right to control how their creative ad properties are being used (AKA copyright violation).

Counterpoint: Adware ads are served through a middle man. Nothing wrong with a middle man. When companies use Google AdWords, Google is the middle man, and their ads appear both on Google and on affiliate publishers who use Google AdSense.

But Google, as a middle man, has their AdSense policies clearly spelled out. Advertisers give Google permission to publish and distribute their ads. Theoretically, that’s sort of how adware is supposed to work: advertisers pay adware companies on a per-click basis to advertise with them, and the adware companies partner with software distributors to include the adware applications with their software packages.

But the industry is crippled by the ridiculous number of affiliates connected to both the ad agencies and the adware companies. According to the report, an ad agency may partner with a blind ad network to run their ads, which is in turn partnered with another ad network who is commissioned to run ads from the previous network. That network is partnered with another and another and so on. The ads trickle down through normal ad channels until it hits an ad network affiliated with an adware company. That adware company is then partnered with an adware distribution affiliate network, which is partnered with another and another in the same fashion.

This way, instead of a simple three-tiered distribution system, an ad goes through maybe 5, 10, who knows how many hands before reaching a user’s computer. In all the confusion, the advertisers lose control of their ad. When a user clicks on it, the original advertiser simply records a click without knowing where the ad was served from. All this happens without regard to an advertiser’s ad serving policy. As far as I know, publishing something created by someone else without their permission is a violation of copyright.

The CDT suggests that advertisers should adopt standard ad placement policies. I’m assuming that advertisers don’t want their ads showing up in adware networks, but maybe they could stem the tide by going after adware networks under something like the DMCA.

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