Background & Introduction

As I previously reported in WhenU Spams Google, Breaks Google "No Cloaking" Rules, WhenU has taken steps to attempt to address negative public perceptions of its products and services. WhenU Spams Google describes one such method: Using prohibited "cloaking" methods to make search engines think certain WhenU servers offer content of interest to readers seeking certain search terms, when in fact the servers merely redirect readers to articles favorable to WhenU.

Beyond cloaking, WhenU also attempts to shape its image by redistributing, on its various web sites, news articles favorable to WhenU. In general such redistribution might be perfectly honorable. But when the copied content includes entire news articles, without any statement of authorization from the respective publications and without even the articles' original copyright notices, such copying might be thought to constitute a violation of copyright law.

This article presents my finding that WhenU has copied at least 26 recent news media stories about it, from at least 20 publications, and has posted these stories on each of at least 12 distinct WhenU web sites. As discussed in Copying without Authorization (below), WhenU lacked authorization to make copies of articles from at least one affected publisher, while I have been unable to contact appropriate staff at other affected publishers. In any event, in response to my research, WhenU removed the articles from its web server, further supporting the inference that articles were copied without authorization.

Specific Findings & Screen-Shots

On www.whenu.com and at least eleven other WhenU sites, WhenU offers copies of at least 26 articles deemed favorable to WhenU. Unlike the articles in WhenU Spams Google, which lacked any indication of author, title, or date or place of publication, these articles include all this information (save for a few omissions of author and/or date of publication). However, these articles nonetheless omit the copyright notices and statements of license expected in authorized full reproductions of articles covered by the protections of copyright law.

The table below presents the article titles, publications, and dates of publication of the articles copied to WhenU's servers. The WhenU domain names listed give links to the articles where previously hosted on specified sites on the corresponding WhenU servers. (However, as discussed in Responses, WhenU has subsequently removed these articles from its servers, seemingly in response to this article.) The screen-shot thumbnails are links to full-size screen-shots.

CNN Judge: Pop-up ads a 'burden' but legal September 9, 2003 whenu.com whenusleuth.com + 10 others	Business Week from c|net Court: Pop-ups burden of using Net Stefanie Olsen September 8, 2003 whenu.com whenusleuth.com + 10 others
Yahoo! News from Associated Press Judge rejects lawsuit against pop-up ads Matthew Barakat September 8, 2003 whenu.com whenusleuth.com + 10 others	c|net news.com Court: Pop-ups burden of using Net Stefanie Olsen September 8, 2003 whenu.com whenusleuth.com + 10 others
Reuters Judge rebuffs legal challenge to pop-up ads Peter Kaplan September 8, 2003 whenu.com whenusleuth.com + 10 others	Internetnews.com Judge says adware is legal Brian Morrissey September 8, 2003 whenu.com whenusleuth.com + 10 others
Wall Street Journal Judge's ruling on pop-up ads is a blow to web-site operators James Hagerty September 8, 2003 whenu.com whenusleuth.com + 10 others	Business 2.0 WhenU SeeNetAds Jimmy Guterman whenu.com whenusleuth.com + 10 others
Taipei Times from New York Times News Service Desktops become legal minefield July 8, 2003 whenu.com whenusleuth.com + 10 others	New York Times Fighting over Web Real Estate Bob Tedeschi July 6, 2003 whenu.com whenusleuth.com + 10 others
International Herald Tribune from New York Times News Service Pop-up ads provoke a turf battle over web rights Bob Tedeschi July 6, 2003 whenu.com whenusleuth.com + 10 others	Internetnews.com WhenU wins legal victory Brian Morrissey July 2, 2003 whenu.com whenusleuth.com + 10 others
Business Week from c|net Court says Gator-style ads are legal Stefanie Olsen July 2, 2003 whenu.com whenusleuth.com + 10 others	ZD Net from c|net Gator pops up with court win for grab ads Stefanie Olsen July 2, 2003 whenu.com whenusleuth.com + 10 others
Wall Street Journal Web-Ad provider WhenU Wins Round in U-Haul Case Carl Bialik July 1, 2003 whenu.com whenusleuth.com + 10 others	c|net news.com Court says Gator-style ads are legal Stefanie Olsen July 2, 2003 whenu.com whenusleuth.com + 10 others
Oregon Live The e-commerce survivors thrive Jeffrey Kosseff December 23, 2002 whenu.com whenusleuth.com + 10 others	Denver Post Let cyber-buyer beware: rusted retailers are the best bet Marsha Austin whenu.com whenusleuth.com + 10 others
TwinCities.com Christmas deadlines drawing near Allison Kaplan December 18, 2002 whenu.com whenusleuth.com + 10 others	CBS Marketwatch Virtual coupon clipping Andrea Coombes December 16, 2002 whenu.com whenusleuth.com + 10 others
Business Today Visit little-box discounters: PCs with web Greg Gatlin December 16, 2002 whenu.com whenusleuth.com + 10 others	Boston Herald Visit little-box discounters: PCs with web Greg Gatlin December 16, 2002 whenu.com whenusleuth.com + 10 others
Orlando Sentinel More holiday shoppers checking out online Richard Burnett December 12, 2002 whenu.com whenusleuth.com + 10 others	Hartford Courant Holiday sales really clickin Richard Burnett December 12, 2002 whenu.com whenusleuth.com + 10 others
New York Times Deal hunting for holidays pushes sales into high gear Constance Hays December 2, 2002 whenu.com whenusleuth.com + 10 others	CBS Marketwatch Shopping smart online: WhenU.com exec tracks bargains Barbara Kollmeyer November 26, 2002 whenu.com whenusleuth.com + 10 others

* - For brevity, this table links to only two of the twelve WhenU sites offering article copies.

In addition to the links above, the copied articles can be viewed directly from WhenU's site in full-size windows that link from one article to the next. Begin with this CNN article, then press "next" to see subsequent articles. See also all article screen-shots in a single web page (approximately 1MB).

WhenU domains hosting the articles at issue include the following twelve, and perhaps others:

www.whenu.com	whenubuild.com	whenuchat.com
whenyoucook.com	whenudecorate.com	whenulearn.com
whenumail.com	whenuretire.com	whenusleuth.com
whenusurf.com	whenyouinvest.com	whereuinvest.net

Screen-shots are also available as to articles hosted on other WhenU sites beyond www.whenu.com. See e.g. screen-shots of articles on whenucook.com and whenyou.com.

In my testing, all twelve WhenU domains at issue offer all 26 articles at issue. That is, the copied content is available on at least 312 distinct URLs (12 times 26).

The copied articles are generally available through Internet search engines. Even after the bulk of WhenU content was excluded from Google and Yahoo for violation of listing policies, some of WhenU's secondary domains (e.g. some of those listed above) remained in search indexes.

Some or all of the copied news articles are present in Internet search engines. As shown in the screen-shot at right, a Yahoo! search for "whenu" yields several of the copied articles within a single screen of results. MSN searches also still list many WhenU results, including six different article copies in this single page of MSN results. Due to the recent exclusion of most WhenU content from major search engines, it is difficult to know how WhenU's article copies fared in search engine rankings prior to WhenU's general exclusion. However, since the WhenU sites that remain in Yahoo! and MSN have far lower ranking than the excluded sites, it is reasonable to infer that the excluded sites would have placed far higher in rankings.

Archive.org indicates that WhenU's article copying began in February 2003 at the latest, and perhaps earlier. See Archive.org screenshot of a New York Times article copied to WhenU's site in February 2003. WhenU removed the article copies in May 2004 (see Responses), so at least some of the article copies existed for at least fifteen months.

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Copying without Authorization

Publishers' statements

Subsequent to finding the copies described above, I attempted to contact publishers to determine whether WhenU had appropriate authorization to make the copies at issue. Through Jeremy Wagstaff, a columnist for Dow Jones, I learned from Dow Jones' Reprint Services department that WhenU's copies were made without authorization. Dow Jones reprint staff note that all authorized reprints must state in copyright notices (at the bottom of the articles) that they are reprinted with authorization.

Other facts giving rise to an inference of copying without authorization

The response from appropriate Dow Jones staff confirms that its articles were copied without authorization. What about the articles from other publishers?

I have concluded that the other article copies are overwhelmingly likely to have been posted without authorization. The bases for this conclusion are as follows:

1. If the articles were copied with publishers' authorization, there would be no need or reason for WhenU to remove them upon the start of public discussion into the articles' existence. In contrast, if the articles were copied without authorization, removing the articles from the web is an obvious initial step to try to right the past wrong, and to try to limit future wrongdoing, especially when facing public scrutiny.
2. Obtaining article reproduction licenses can be costly, and if WhenU had incurred these high costs, it would have wanted to feature the articles more prominently on its site. As to license costs: The "Reprints & Permissions" link on a recent New York Times article offered a one-year web reprint license for $600, per article.
3. The articles lacked statements of copyright or authorization to reproduce. In my experience, and in my recent research, the overwhelming majority of licensed reproductions include copyright notices and statements of license to reproduce.

Understanding WhenU's behavior

The presence of so many copied articles, seemingly so painstakingly collected and archived, gives rise to the question of WhenU's motivation in preparing these copies.

One possible explanation to the puzzle of WhenU's copied files lies in the company's likely goal of obtaining favorable search engine rankings, for content favorable to WhenU, while limiting out-of-pocket expenditures for licensing costs.

By posting the articles to its public web servers (and perhaps linking to them via hidden links of the sort WhenU used in the cloaking I previously documented in WhenU Spams Google), WhenU was able to make the articles available to search engines without prominently posting the articles to its public web site. Then, when users asked search engines for sites about WhenU products and services, these articles would appear in search results.

By copying the publishers' content to WhenU's own server, WhenU was able to avoid the limitations publishers have implemented as to access to their publications. Many publishers restrict access to their materials: For example, New York Times content is available on the web without charge only for a period of weeks after each article's release, and even then only to New York Times registered users. Furthermore, Wall Street Journal content is only available for a fee. As a result, neither publication's articles are widely available in ordinary search engines. But when WhenU copied the articles to its own server, no user registration was required to read the articles, and the articles never expired.

Meanwhile, if WhenU linked to the content in hidden ways that search engines see but users do not, unauthorized copying would be less likely to catch the attention of even careful visitors to WhenU's web site.

To the extent that this explanation seeks to speak to WhenU's intent, it is in part speculation. But the observed facts are consistent with this explanation in every particular: The articles are provided in ways that search engines can index; search engines have indexed them; the article copies bear no copyright notices, statements of license, or other indications of official permission to reproduce the publishers' content; and at least some article copies were definitely unauthorized.

That said, I don't yet know where (if anywhere) or how WhenU has linked to the copied news articles. Hidden links can be hard to find; I've looked in many places on many WhenU sites, but the links might have escaped my detection. It is also possible that there are no hidden links to these articles: For example, WhenU could have removed such links after search engines picked up the articles. Or, WhenU could have submitted the article URLs to search engines manually, e.g. via Add URL forms. Either way, WhenU's site would currently feature no links from its main public pages to the copied articles. But under such an approach, on most search engines the copied articles would nonetheless benefit somewhat from the underlying search engine rankings (e.g. PageRank) of the parent site.

Responses by WhenU and the Affected Publications

WhenU

To date I have received no response from WhenU as to the findings reported in this article. However, on May 17 WhenU removed the articles at issue from its public web servers.

Affected publications

To date, one publisher has told me that the copies were made without authorization. See Copying without Authorization (above). I have yet to receive responses from other affected publishers.

Disclosures

My interest in spyware originally arose in part from a prior consulting engagement in which I served as an expert to parties adverse to Gator in litigation. See Washingtonpost.Newsweek Interactive Company, LLC, et al. v. the Gator Corporation. More recently, I have served as an expert or consultant to other parties adverse to spyware companies in litigation or contemplated litigation, including 1-800 Contacts, Quicken Loans, and Wells Fargo, all companies adverse to WhenU.

This page is my own work - created on my own, without approval by any client, without payment from any client.

Last Updated: May 25, 2004 - Sign up for notification of major updates and related work.