Recent news stories on the New York Times online site and News.com have dealt with the pop-up battles. The Times reported that it and various online content companies and retailers such as U-haul have filed various suits against Web advertisers Gator Corporation and WhenU.com over the use of pop-up ads that change what you see on the screen. What may seem like a clear-cut case may not be so easy to decide. To date, two sets of cases have reached different conclusions. The authors of the pesky popup software have presented an interesting argument. They claim that you, the computer user, gave them permission to do it. And, they argued, you, not the originator of the Website, have the ultimate control over the display on the computer screen.

How, you might ask, did you give them that permission? Software such as KaZaA, eWallet or Weatherscope carries the Gator code. Did you read the fine print in the license agreement when you downloaded that ‘free’ software? Probably not if you are like most of us. If you had you might not have fully appreciated the permissions you were giving. “Free” may not be quite what you thought it was.

The Gator Website puts it this way,

At least I now know what that little alligator logo means.

Anyway, the Courts have not been consistent in the rulings on the early suits. Even two federal judges from the same district seem to disagree. One issued a preliminary injunction against the practice in an early round in a suit filed last year by the Washington Post, New York Times and others against Gator. That ruling by Judge Hilton of the US District Court for the Eastern District of Virginia became essentially moot when the cases were settled earlier this year.

In June, Judge Lee who is a colleague in the same district issued what appears to be a contradictory ruling in favor of similar actions by WhenU. That case involved the U-haul Website and the WhenU software automatically displayed an ad from a U-haul competitor.

You may have realized that the software you wanted was only free to the extent that you paid for it with information about you and your Web viewing habits rather than cash. (Did you tell them the truth about your age, family income and whether or not you owned or rented your primary dwelling? There is an interesting ethical question about whether or not they are entitled to know the truth. . .)

Anyway, buried in the Gator license agreement is the permission. The companies then argue that, because you gave them permission to watch your browsing and bring you targeted ads, you are the one modifying your screen and that it is not liable for either copyright or trademark infringement. One of their arguments is that the very essence of the Windows program is the ability for the user to have multiple screens showing at the same time. So, they ask, why can’t you give someone else permission to open one of those windows? At least that is what they argued.

Until there are final judgments, and not sealed settlements, the exact law on this topic will remain unsettled. It is no secret that the content owners are being very aggressive in protecting investments in music, movies and now, Web pages. For the full stories and later updates on pop-ups you can visit the New York Times Online Website and the News.com site.

On the other side of the country, the California Supreme Court has issued an opinion in a case in which Intel, the computer chip maker, tried to stop a former employee from sending thousands of e-mails to company workers. Intel claimed that it was a trespass to its computers but that isn’t how the California court saw it. I’ll have more on the opinion in a future column but you can read the opinion.