Original URL: http://www.theregister.co.uk/2008/09/29/front_porch_sues_hitwise/
Is Hitwise in the Phorm biz?
When ad targeters attack their own
Posted in Telecoms, 29th September 2008 02:57 GMT
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Front Porch – a Silicon Valley startup offering a Phorm-like online ad system (http://www.theregister.co.uk/2008/07/07/massillon_and_newwave_use_frontporch/) – has sued several companies for patent infringement, including NebuAd, Hitwise, and Microsoft.
The patent at the heart of this suit does not cover the sort of ISP-based behavioral ad targeting that Phorm, NebuAd, and Front Porch are now famous for. But it may point to other companies who've waded into similar waters - most notably Hitwise, a self-styled "competitive intelligence service" whose traffic monitoring software sits inside 30 ISPs across the globe, tracking the online behavior of 25 million people.
In mid-July, just as the stateside controversy (http://www.theregister.co.uk/2008/09/25/verizon_on_behavioral_ad_targeting/) over NebuAd's ad targeting reached its peak (http://www.theregister.co.uk/2008/07/17/house_nebuad_hearing/), Front Porch filed (http://www.theregister.co.uk/2008/07/17/house_nebuad_hearing/) a federal suit under the name Pagemelding Inc., one of its subsidiaries.
Front Porch CEO Zach Britton and co-inventor Derek Maxson own a US patent entitled "Method and apparatus for dynamically forming customized web pages for web sites." Basically, it describes a means of serving up customized pages and ads to customers of a particular ISP.
"ICPs [Internet Content Providers] can...attract Internet traffic from organizations that have direct access to the Internet," the patent reads (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=6,442,577.PN.&OS=PN/6,442,577&RS=PN/6,442,577). "There is, therefore, a need for a method and apparatus which enable an ICP to dynamically form customized web pages for ISPs and organizations that have direct access to the Internet.
"There is another need for a method and apparatus which enable an ICP to dynamically select advertisements to be included in customized web pages."
The idea is quite simple. You check a user's address, and if the address originates from a particular network location, you customize pages accordingly.
How Front Porch customizes ISP web pages
With its suit, Front Porch accuses five companies of violating this patent: Feeva Technology, Hitwise USA, Kindsight, Microsoft, and NebuAd. "This lawsuit is intended to enforce our patented technology against a number of recent infringements," Front Porch CEO Zach Britton told The Reg, declining to elaborate.
At the time of writing, Hitwise and NebuAd were the only defendants who responded to our requests for comment. And both said they would not comment on pending litigation.
Like Phorm in the UK (http://www.theregister.co.uk/2008/02/29/phorm_roundup/), NebuAd has received considerable criticism over the past several months for deploying its ad targeting system on several American ISPs without providing adequate notice (http://www.theregister.co.uk/2008/04/22/wide_open_west_users_with_nebuad/) - never mind requiring an opt-in. After a request (http://www.theregister.co.uk/2008/07/02/wow_sticks_with_nebuad/) from Congress, ISPs say they've suspended use of such systems, and NebuAd says it has temporarily turned its attentions to other technologies.
Using deep packet inspection, the company's ISP-level hardware tracks a web surfer's search and browsing activity and shuttles it to various advertising networks, where it's used to target ads. If you search for, say, French vacations, you'll soon see ads for French vacations. The company says each user's IP is anonymized, but US law may still require an opt-in.
Front Porch offers a similar system, and it too has been put on hold as Congress investigates behavioral ad targeting. But Britton has always told The Reg that unlike offerings from Phorm and NebuAd, his system is opt-in only and does not use cookies.
With its suit, Front Porch is not accusing NebuAd - or any other company - of mimicking the way it tailors ads according to user search and browsing habits. But the suit does indicate that each defendant is somehow altering web pages or online advertisements. We all know that's what NebuAd does (or did). But what about the other four?
What is Hitwise up to?
It's unclear why Microsoft is named in the suit. But it's hardly surprising to hear that Microsoft is tailoring pages and ads according to particular user addresses. After all, it runs a search engine.
But Hitwise is another matter.
Hitwise - now owned by credit checking giant Experian - has made a name for itself by analyzing user traffic it collects from unnamed ISPs across the globe. The company will not say whether ISPs obtain consent from users before tracking their clicks, but it's adamant the data it collects cannot be used to identify the behavior of individuals.
"Hitwise is in the syndicated research business, receiving from ISPs anonymized and summarized online usage data," the company has told The Reg. "Hitwise uses this data to publish independent research information on websites and industries, not users. Hitwise analyzes the anonymized data to provide an aggregate view of the market."
But the company may have developed software that goes a bit further. In April, The Times of London (http://business.timesonline.co.uk/tol/business/industry_sectors/technology/article3688387.ece) reported that the company was expanding the use of its monitoring software, "braving mounting concerns over internet privacy with plans to launch a service that will track broadband users’ activity so they can be targeted with advertising." Hitwise, the paper said, was prepping a system like Phorm's.
When we asked the company about the report, a spokesman said "Hitwise is not in the behavioral targeting business and just focuses on our competitive intelligence service that uses anonymized ISP data to provide an aggregate view of the market."
And yet the Front Porch suit accuses Hitwise of customizing web pages and/or ads served to particular ISP users. "Defendant Hitwise has infringed, continues to infringe, and unless enjoined will continue to infringe one or more claims of the [Front Porch patent], directly, contributorily, and/or by inducement, by making, selling, and/or offering for sale in this country, and/or importing into this country, and inducing others to use, without license, certain products and/or services that consist of and/or incorporate methods and/or apparatus disclosed in the [patent] for dynamically forming customized web pages," the suit reads.
This is hardly proof that Hitwise is using its ISP monitoring software to tweak content for ISPs. It's just a lawsuit. But when paired with that report from The Times, it raises new questions about the monitoring software Hitwise has already deployed worldwide.
When we asked the company if users can opt out, it said "we cannot speak on behalf of the ISPs." Over 25 million ISP users are affected, including 10 million in the US.
And then there are the other two companies named in the Front Porch suit: Feeva and Kindsight. According to its website, Feeva provides "the digital marketing industry with reliable and verifiable data." Meanwhile, Kindsight says it is "a value-added services provider specializing in network-based security solutions for residential internet use." A spin-off from Alcatel-Lucent, the company was formerly known as Project Rialto.
It has long been rumored that Project Rialto was developing a system similar to Phorm's and NebuAd's. ®
Update
Microsoft has also declined to discuss the suit.