Claria, Litigation, and the Wild West

Last week, I heard my officemate muttering something under his breath about the Wild West. I turned around, half expecting him to be watching a Western from the DVD drive on his laptop. But no, he was actually reading an email newsletter. Curious as to how this related to the frontier, I had to inquire.

He was reading an article about the latest legal ruling involving Claria (formerly Gator). His take on the seemingly endless controversy around this particular advertising model made a lot of sense, and he graciously agreed to let me use it as fodder for my column.

We live in a litigious society. Suing the pants off your enemy is the new American pastime. It’s particularly odd companies in technology-driven industries often choose legal action over other methods of fighting business battles.

If I were to take all the money that’s been invested (read: wasted) on trying to determine the legality and morality of the URL-targeted ad model and spend it on research and development, I could easily find a better behavioral targeting solution, and maybe solve a few other industry challenges, inside of six months. OK, I’m exaggerating a bit. So sue me (pun intended).

Faced with an unpleasant situation, many in our industry choose to sue the opposition. In some cases, this may be the only option. But our industry is young, and, despite rapid evolution and solutions to some of our most challenging problems, we have a long way to go. In some cases a more effective way to fight the opposition is simply to be better than they are. Be resourceful (within legal and ethical boundaries), move faster, optimize better, or solve the problem another way. No challenge has only one solution. There’s always a better way.

I’d guess most advertisers using a Claria-type model don’t really like it. I know some marketers who feel dirty because they use it. They know it can be effective under the right circumstances, but they use it either for competitive reasons or because they’ve tapped out other targeting options. They have optimized their other channels to the perfect mix of volume and efficiency and are seeking new targeted channels for scale.

There have been a fair number of experiments with cookie-level targeting, behavioral targeting, and so forth. But very few of these efforts to capitalize on alternative targeting methods have actually been successful. These attempts have failed not because the idea won’t work. It might not work now, but it will. It must be a technology limitation or a weak execution on some other level. Someone will make it work.

Let’s return to my officemate’s Wild West analogy for a moment. Did the pioneers have the luxury of running to the law every time they felt they were wronged or treated unfairly by the harsh environments they encountered? No. The law hadn’t caught up with the early pioneers. If you were out there, you had to be resourceful. That’s what we’re lacking here.

If the industry could shift its focus, money, and energy away from legal wrangling, we might get some other stuff done. A lot of really smart people get stuck in courtrooms. My intention is neither to vilify Claria nor make it a hero. If you want to fight it, creating a better solution would be more effective. Like it or not, Claria exists because it solves a problem a lot of marketers face. It’s not perfect, but it works for now.

We’ve got plenty of lawsuits and not enough innovation. Battling our business enemies in the courtroom should be a last resort, not the first reaction. This tactic often doesn’t give clear answers and winds up lining lawyers’ pockets with money that should be spent within our industry.

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