Popster is a (hypothetical) software company that distributes a product also known as Popster. The Popster software is distributed in a bundle with various freeware and shareware programs. When installed on a user's computer, Popster watches the user's web browsing. When the user visits a site on Popster's "watch list", Popster causes a pop-up ad to appear on the user's computer.
Popster makes its money by selling targeted ads. Anybody can buy an "ad slot" from Popster, bound to a particular URL or site which will trigger the display of the desired ad. For example, a winery could buy an ad triggered by the "wine" page at an online dictionary; or UPS could buy an ad triggered by the FedEx web site.
When a Popster ad is triggered, it never obscures the original site. The ad is placed on the screen outside the original site's browser window, if possible. If there is not enough free space on the screen to display the ad along with the original site, then the ad window is displayed as a "pop-under" window behind the original browser window.
Popster never records any information about the user's browsing habits, and it never sends any information off of the user's computer. It watches the user's browsing habits only for the purpose of determining when to pop up ads to that user. The Popster software does periodically download a list of sites to watch for, and which ads to trigger for each such site.
Users consent to the installation and operation of the Popster software via an End User License Agreement that is presented to the user when Popster is installed. The license explains (in small print) roughly what Popster does. Popster does not run unless the user agrees to the Licence Agreement.
Popster was sued by a newspaper, the New Jersey World, after Popster sold an ad, triggered by the World's site, to a rival newspaper. The World claimed that the display of the rival's ad was copyright infringement, since it amounted to an unauthorized addition to the World's news display. The World also claimed that the ad infringed the World's trademark, by falsely implying an association between the rival newspaper and the World's trademarked name and logo.
Write an essay of no more than two pages, saying whether or not Popster's behavior is improper, and explaining why.
[Hint: This hypothetical bears some similarity to a real case involving a company called Gator, but I have changed some important details.]