ONLINE ADVERTISING
IP infringement on the Internet continues to worry IP owners and professionals, who can fi nd it diffi cult to deal effectively with the problem. WIPR takes a look at online advertising and how it can be targeted to help prevent infringement.
Online intellectual property infringement is generally accepted to be getting worse. T is is refl ected in the fl urry of activity throughout 2011 and early in 2012: legislation was mooted (the Stop Online Piracy Act), and in some cases passed (the Anti-Counterfeiting Trade Agreement), to help tackle it, and websites such as Megaupload were closed, its domains seized and its owner Kim Dotcom arrested in a bid to stop it. While legislators and enforcement agencies do their part, businesses should be acting decisively to protect and enforce their IP online.
Understanding the Internet and its many components can go a long way to helping IP owners identify the best methods available to them. T e unprecedented access to consumers that the Internet provides has pushed businesses into online advertising. Consumer trends, including viewing habits, can be quantifi ed and documented, and the ‘click’ allows advertisers to interact with consumers in a way that they never have before.
Online advertising has led to new ways of infringing IP. T e keyword advertising cases are a good example of this. Competitors oſt en buy each others’ trademarks as searchable keywords in a bid to top search result lists. Online ads can use copyrighted or trademarked copy easily, and counterfeiters can buy ads themselves to market their products. But online advertising can also be the reason for infringing IP. Websites that host pirated content attract huge numbers of users, and if they host third party advertising, they can make money without selling the content themselves.
A bootlegged video of a recent NCAA men’s basketball game was uploaded to an online video hosting site. In a bid to help users access more content, the online video service suggested content that users might want to watch in a list that was positioned to the right of the video. Among these suggestions were not only a sponsored video that was labelled ‘ad’, but also an offi cial trailer for an upcoming movie from a major US movie studio. If the video secured enough hits, its owner would also get the opportunity to earn revenue from pop-up ads.
T is example highlights how infringing content can earn revenue from advertising. It also shows how closely adverts can be positioned to infringing content, which opens up the possibility of the adverts, and by extension the advertisers, being associated with the infringing content.
T is is a minor example of a major problem, according to Latham & Watkins LLP partner Perry J. Viscounty. Online advertising providers have networks of websites that host advertisements. Businesses are able to use these networks to target many users at once or specifi c groups of users. Infringing websites that attract millions of users serve as excellent vehicles for adverts and it is a business model that is increasingly being used.
IP owners should realise that advertising-funded online IP infringement is a “signifi cant problem”, happening on wide scale, he says. “Some have argued that online advertising is helping to fund some of these unauthorised sites,” says Viscounty. “What’s become popular is for these websites to give away their content for free, which attracts
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World Intellectual Property Review March/April 2012
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