Advanced Copyright Issues on the Internet - Fenwick & West LLP

other windows visible on the computer’s screen, including the window of the user’s selecteddestination web site. 2302The court rejected U-Haul’s arguments that SaveNow infringed its exclusive rights ofdisplay and derivative works. With respect to the display right, U-Haul argued that SaveNowunlawfully caused its web site to be displayed together with WhenU’s pop-up ads. The courtrejected this argument, noting that the user, not SaveNow, was the one who called up the U-Haulwebsite. The SaveNow program did not alter U-Haul’s web page in any manner, and theSaveNow window in which the ad appeared bore no physical relationship to the window inwhich the U-Haul web page appeared. 2303With respect to the derivative works right, U-Haul argued that the SaveNow programcreated an infringing derivative work by retrieving the U-Haul web page, placing its ownadvertisement on that Web page, then displaying it to the user. The court ruled that no derivativework of the U-Haul web page was created. First, the WhenU window was a “distinctoccurrence” from the U-Haul web page, rather than a single integrated work, and the appearanceof a WhenU ad on the user’s computer screen at the same time as a U-Haul web page was “atransitory occurrence that may not be exactly duplicated in that or another user’s computer.” 2304Second, although the pop-up ad altered the user’s computer display, the alteration was notinfringing. “To conclude otherwise is untenable in light of the fact that the user is the one whocontrols how items are displayed on the computer, and computer users would infringecopyrighted works any time they opened a window in front of a copyrighted Web page that issimultaneously open in a separate window on their computer screens.” 2305Accordingly, WhenU was entitled to summary judgment on U-Haul’s claim of copyrightinfringement. 2306 The court also rejected U-Haul’s trademark claim on the ground, amongothers, that the appearance of WhenU’s ads on a user’s computer screen at the same time as theU-Haul web page was a result of how applications operate in the Windows environment andtherefore did not constitute a “use” of U-Haul’s trademarks under the Lanham Act. Neither didinclusion of the U-Haul URL or the word “U-Haul” in the SaveNow program constitute “use”under the Lanham Act, particularly since WhenU did not sell the U-Haul URL to its customersor cause the U-Haul URL or name to be displayed to the computer user when the ads poppedup. 2307 Finally, the court found no unfair competition because the user had consented, byaccepting the clickwrap license and downloading the software, to the display of the ads on his orher screen. 23082302 Id. at *2.2303 Id. at *6.2304 Id. at *7.2305 Id.2306 Id.2307 Id. at 4.2308 Id. at *1.- 504 -