Go2Net, Inc. v. C I Host, Inc.

115 Wash. App. 73
CourtCourt of Appeals of Washington
DecidedJanuary 13, 2003
DocketNo. 50119-4-I
StatusPublished
Cited by79 cases

This text of 115 Wash. App. 73 (Go2Net, Inc. v. C I Host, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Go2Net, Inc. v. C I Host, Inc., 115 Wash. App. 73 (Wash. Ct. App. 2003).

Opinion

Kennedy, J. —

This lawsuit involves a dispute over the meaning of “impressions,” a key term in Internet advertising. C I Host twice contracted with Go2Net to post advertisements on its website. The agreements provided that Go2Net would charge C I Host based on the number of “impressions” recorded by Go2Net’s ad engine count. C I Host refused to pay for the service, purportedly because it suspected that Go2Net was including visits by search engines and other “artificial intelligence” agents, as well as human viewers, in its count of impressions. Go2Net filed suit against C I Host to enforce the agreements, arguing that the agreements unambiguously allowed Go2Net to count impressions in this manner. The trial court granted summary judgment to Go2Net, and denied C I Host’s motion for reconsideration based on what C I Host argued was newly discovered evidence. CI Host appeals. We affirm.

[77]*77FACTS

C I Host, Inc., is a Texas-based provider of web hosting and electronic commerce consulting services. Go2Net, Inc., d/b/a InfoSpace, is a Seattle-based Internet service company that owns and manages a variety of websites and provides advertising services on the web. On May 15 and July 7, 2000, respectively, C I Host entered into separate advertising agreements with Go2Net, Inc., under which Go2Net agreed to display advertisements for C I Host on websites within the Go2Net network, including a website called HyperMart.1

Both advertising agreements provided that Go2Net would deliver C I Host a certain number of “impressions.” The parties dispute the precise meaning of this term. A Wall Street Journal article dated November 16, 2001, discusses problems in the Internet ad industry arising from the fact that Internet publishers “use many different methods to measure ad impressions.” Clerk’s Papers at 139. Some count the number of times an ad is sent to a computer screen, while others count only the number of times it actually shows up on the screen. And some companies count visits by automated web crawlers and search engines as ad impressions, even though the “visits” were not made by actual human consumers. The article stated that several Internet companies were in the process of developing a standardized “single method for counting online ad ‘impressions.’ ” Id. at 139. The Interactive Advertising Bureau, a group of online publishers that relies on ad revenue, recently defined the term “ad impression” as follows:

1) an ad which is served to a user’s browser. Ads can be requested by the user’s browser (referred to as pulled ads) or they can be pushed, such as emailed ads; 2) a measurement of [78]*78responses from an ad delivery system to an ad request from the user’s browser, which is filtered from robotic activity and is recorded at a point as late as possible in the process of delivery of the creative material to the user’s browser — therefore closest to the actual opportunity to see by the user.

http: // www.interactivejargonguide.org/ Glossary/Term/impression (accessed October 25, 2002).

The May advertising agreement contemplated a one-month advertising campaign commencing on May 30, 2000, in which Go2Net would deliver approximately 385,000 “total impressions” for $4,820. The July agreement contemplated a 12-month campaign, commencing July 13, 2000, in which Go2Net would deliver 30,000,000 “total impressions” for $286,100. The agreements provided that Go2Net’s equipment would count the number of impressions and would bill accordingly:

All impressions billed are based on Go2Net’s ad engine count of impressions. In the event of a conflict between the number of impressions reported by Go2Net, Inc. and any remote server, the Go2Net, Inc. count stands. All payments will be based on Go2Net, Inc. ad server counts.

Clerk’s Papers at 69. The agreements did not guarantee or provide for payment based on the number of “click-throughs,” or times a viewer clicks on a banner advertisement and is routed to the advertiser’s website. Rather, the agreements provided that:

Go2Net makes no representations or warranties relating to the results of Advertiser’s advertising by means of the Internet, including without limitation, the number of page views or click-thrus such advertising will receive and any promotional effect thereof.

Clerk’s Papers at 70. The term “impressions” was not explicitly defined in either agreement.

Christopher Faulkner, chief executive officer of C I Host, executed both agreements on behalf of C I Host. Each agreement contained an integration clause specifying that “[t]his Agreement supercedes and replaces any existing [79]*79written or oral agreements between Go2Net and Advertiser and may be modified only in writing signed by both parties.” Clerk’s Papers at 57, 61, 70. Go2Net provided Faulkner with an Internet link and password so that he could monitor the C I Host campaign.

On June 27, 2000, Go2Net employee Claire Elias sent an e-mail to Christopher Faulkner regarding the performance of the one-month May advertising campaign. Attached to the e-mail was a Go2Net “Accipiter AdManager” report, which showed how many “ad requests” the C I Host ad campaign had generated, along with the number of “clicks” and the “click rate.”2 The report defined the term “ad request” as follows:

The request of an advertising element as a direct result of a visitor’s action, as recorded by the advertisement server software. This metric is independent of content and what is actually being displayed to the visitor. An ad request does not guarantee that a visitor actually viewed an ad, it only measures the opportunity for an ad to have been delivered to the visitor. This means that an ad request will be considered valid regardless of the visitor’s ability to view graphics, and whether or not the HTML document containing the ad loads to completion. In practice an ad request will be recorded when a Web server or Ad server engages in the technical process of an advertisement insertion.

Clerk’s Papers at 371. Later that same day, Faulkner sent a reply e-mail to Claire Elias at Go2Net, informing her that “[w]e are very pleased with the campaigns.” Clerk’s Papers at 366.

The record also contains a Go2Net “Engage AdManager” report, generated on August 23, 2001. This report is similar to the previous Accipiter AdManager report in most respects. However, whereas the Accipiter report referred to “ad requests,” the Engage report referred to “impressions,” [80]*80and contained a definition of “impression” that was identical to the definition of “ad request” in the Accipiter report. Clerk’s Papers at 96-100.

C I Host’s computer network system possesses the capability to automatically track and monitor all persons visiting C I Host websites. Therefore, C I Host is able to create daily, weekly, and monthly reports that reveal the number of persons that have visited a C I Host website by clicking on a particular ad carried by a particular website.

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Bluebook (online)
115 Wash. App. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/go2net-inc-v-c-i-host-inc-washctapp-2003.