WIRED reports that "contextual marketing" firm WhenU.com (a purveyor of pop-up and pop-under ads keyed to URLs and keywords) has won a decision against Wells Fargo, which was seeking a preliminary injunction against WhenU.com (Pop-Up Firm Wins Again in Court). Read the 66-page decision: Wells Fargo v. WhenU.com: Memorandum Opinion and Order Denying Plaintiffs' Motion for Preliminary Injunction [PDF]. The decision is an important victory for the end-to-end principle against attempted incursions by trademark and copyright law. Of course, there are a lot of facts to wade through, including this nugget for which Ben Edelman is cited as the authority:

Since 1996, millions of computer users have become regular users of the Internet and the World Wide Web.

Gee, didn't know that. Additionally, we learn:

The computer screen is composed of a series of picture elements (called "pixels") .... Pixels are arranged in a single layer of horizontal and vertical rows that form a grid on the computer screen. The particular color of each individual pixel which, taken together, make up the image displayed on the 2-dimensional computer screen, is determined by instructions received from the underlying computer program. [citations omitted]

The decision goes on to delineate the following facts:

36. A series of events must transpire in order for a user to view a web page via an Internet browser on his or her computer screen. Tr. IV (Edelman) 119-20.

37. First, the remote server on which the computer code for a particular website is maintained sends the code to the user's web browser. Tr. IV (Edelman) 120. 3 8 . Second, the PC's browser then reads the code to determine how each pixel that makes up the computer screen should illuminate in order to create the specific on-screen display for that particular website. Tr. IV (Edelman) 120.

39. Third, the PC's browser then conveys specific instructions to the Windows operating system, which, in turn, will send these instructions to the PC's video card. Tr. IV (Edelman) 120. These instructions are stored in the video memory frame buffer portion of the PC's video card. Tr. IV (Edelman) 121-22.

40. Finally, the video card, thereupon, causes each pixel on the computer screen to illuminate so as to create the specific 2-dimensional on-screen display of the website. Tr. IV (Edelman) 120.

Well, you might think all these facts unnecessary (they certainly are boring to read), but in fact they were an important aspect of the case, as Wells Fargo was arguing that the pop-up windows were a modification of video RAM and thus modifications of the plaintiff's webpages. Video RAM! Suddenly, this extensive discussion of how images are displayed makes sense, although I have to question what planet the plaintiffs lawyers were living on. Apparently you can get paid big time lawyer-bucks for the sort of reasoning that results in claims that changes to video RAM are actionable under copyright law.

Still, not all of the plaintiffs arguments were this risible, and the decision is worth reading, particularly for those interested in trademark on the net.

Finally, Martin Schwimmer notes a major foul-up by the plaintiffs (Look Before You Litigate). Apparently, a subsidiary of Wells Fargo used the services of WhenU.com. Ooops.