Patent and Trademark Law has been engrossed in the rise of e-commerce over the last several years and through a few recent cases (particularly Allen v. IM Solutions, Inc.), has finally determined what we netizens have always known: Websites and pop-up advertisements are a numbers game.
A consumer visiting a website is no more indicative of the consumer's likelihood of doing business with that website's owner than a pop-up advertisement's appearance is of swaying the consumer to interact with this other website. This low engagement rate was one of the principle reasons that the US District Court in Oklahoma tossed the case between Allen and IM Solutions; pop-up advertisements are pretty useless.
Unfortunately, this "numbers game" approach to advertising isn't isolated to just pop-up advertisements, but also spam e-mail, junk mail, and even the advertisements you see plastered throughout our nation's busiest airports. In order to sell their products, marketers must determine a cheap way to reach tens of thousands of potential customers to find that 1% who fall for their hook.
This process is known as Business Intelligence, where large amounts of consumer data (typically acquired from retailers) are analyzed using algorithms (such as K-Nearest Neighbor, or "basket analysis") to segment the population into groups of people (e.g. "single mothers" or "residents of area code 89086") or determine which products are purchased together (e.g. "if milk is purchased then cheese is 67% of the time).
Matthew Crawford recently wrote a op-ed on New York Times about the effect that the rise in advertising has on society during what is referred to as the Attention Economy. This faux economy is the attempt to explain the finite ability of modern humanity to focus our attention on specific items. We can only focus on so many things, and in today's world we are increasingly being confronted with uncomfortable choices on what is and is not important enough to warrant our attention.
In a detailed article on Nature.com a group of researchers explain, in exhaustive detail, the difficulties of managing the scarce attention we have as individuals and as a society. As more competitors enter the attention economy and consumers are faced with greater strains on their finite ability to "pay attention," society is becoming increasingly withdrawn, cynical, and confused.
Take, for example, the recent rise in polarized politics in America. Part of this polarization can be attributed to the Deffuant-Weisbuch (DW) model where increasing ambiguity in hot-topic issues (e.g. Genetically-Modified Organisms, Vaccinations, or The Affordable Care Act) has led to an increasing number of extremist view points and increasingly hostile and polarized political landscape. While these topics eventually work themselves out through political conversation, it may be tempting to assume that simply educating people on these ambiguous topics would alleviate most of the polarization; so why aren't we doing so?
We are, but people simply lack the mental resources to dedicate to researching, or even paying attention to others' research on, these topics. This lack of attention doesn't just find its way into our political system, but also has a pretty damning effect on more personal issues such as sexism in the workplace.
In a recently viral Medium post, Kate Levinson speaks out against the pervasive effect that sexual harassment and sexism in the workplace has had on those who speak out against it; and overwhelmingly the fear has not been of reprisal, but of an apathetic public. The hypothesis of the Attention Economy is that this apathetic public can lame its blame on the overwhelming burden being placed on their finite attention spans day in and day out.
So while IM Solutions may not have violated any patent or copyright law in displaying advertisements on a competitor's website through a software package that can only be described as malware (which is a whole other issue!), they may have unwittingly participated in a shared cultural decay, a burden on society's collective ability to function, or - at the very least - hindered the ability of Allen's "mere hopeful" clients' ability to fully devote their attention to their task at hand.
In which case, the intrusive marketing techniques of this corporation (and others like them) may find themselves in hot water should the civil rights section of technological law ever catch up to the innovations of the marketing arm of Corporate America.