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Washington Journal of Law, Technology & Arts

Abstract

Two businesses that advertise online, Lane's Gifts and Collectibles and Advanced Internet Technologies, recently filed lawsuits against Google, and other intermediaries that offer sponsored advertising services. The companies allege that these intermediaries failed to adequately protect them against "click fraud." Click fraud refers to the practice whereby competitors and other persons may click to view an online ad with no intention of buying, learning about the advertiser's services, or engaging in any other action that the ad aims to achieve. Plaintiffs allege that the intermediaries breached their contractual duties by charging the companies whose ads they hosted for fraudulent clicks, and by failing to take adequate detection and prevention measures. This Article examines the basic contract law claims underlying these cases and concludes that while contracts may grant the search engines discretion to define chargeable clicks, such discretion might be constrained by the terms of extrinsic writings.

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