I think the whole angle for this case was missed.
Hooper's arguement works. Same as a pop up blocker, if I, as a computer user, voluntarily and knowingly install a piece of software on my computer that will pop a window for XYZ Travel site on top of my existing browser everytime it detects I hit Joe Blow's travel site, then there's not a damned thing that Joe Blow can say about it.
I haven't violated his copyright or stolen his content, I've just opted for some different behavior than he intended of my software on my computer whenever his site is encountered. I see no legal basis to fight that.
But what everyone is missing with this case is that gator is not being voluntarily and knowingly loaded by users. It is being snuck in as plugins and as part of software that is being downloaded off the net. It is by all definitions a trojan horse.
|