Hiding Your Choices And Saying You Made Them

An anonymous reader writes "Lawmeme's Paul Szynol describes how during installation RealPlayer hides checkboxes that elect that the user receives spam, making it look like the user chose to make the selections when in fact he probably just didn't see the options. "This is essentially a cheap and dirty marketing tactic which creates an illusion of informed acceptance by the user where no such acceptance really exists." Other people have posted similar examples from other applications. Is this illegal, or just annoying?"

Comments

My feeling is...

[suman28]

If they don't show the choices at all, then this hopefully is illegal. I did accept it, but I accepted the choices given to me. But then what do I know. I am no lawyer.

Re:My feeling is...

[squiggleslash]

The reason why it isn't illegal is that there's no legal obligation to provide an opt-out for spam in the first place. Spam isn't illegal.

My reading is that if there was an obligation, Real's tactic would, indeed, be illegal. People are comparing this to the "small print" in contracts. However, small print is clearly visible, and the intent behind it is to discourage people from reading it, rather than discourage them from believing that more information is available.

Here's a question. Suppose I gave you a sheet of paper, with a contract written on it. At the top is the space for the signature. The last clause on that paper was shown complete, and you read it, asked for a pen, and signed it. Could I get away with then enforcing clauses on "page 2" of the contract, that I never gave you, and quite intentionally avoided mention of, on the grounds that "The contract was two pages, if you'd just asked I'd have given you the second sheet". (Ok, so the dialog has a scrollbar with a bar positioned at the top, but the contract, for the sake of consistancy, has "Page 1 of 2" written at the bottom in small writing.)

I seriously doubt it, and I suspect any lawyer that tried such a trick would get disbarred. Despite the belief that law is all to do with loopholes and the ability to con people that many Slashdotters believe, and occasionally even think is right, words like "intent" and "mislead" and "reasonable" come up time and time again in courts, and are taken very seriously. If there is a serious, deliberate, and successful attempt to mislead someone into what the terms of a contract means, the contract is very rarely valid.

None of which has any bearing on this case because spam isn't illegal. As you say "Some people don't like immoral but technically legal tricks", but I'd say it's the spam, not the agreeing to it, that's the technically legal but entirely immoral thing going on here.

Illegal?

[Prior Restraint]

Is this illegal, or just annoying?

Okay, I'll offer myself up as the sacrificial lamb and ask the obvious: Why would this be illegal?

Re:Illegal?

[suman28]

I agree with this poster. This is not illegal because it is your responsibility to read everything before you sign a document or accept any dialog box. If you don't read it or don't understand it, then it's your problem.

Re:Illegal?

[Anonymous Coward]

Because some folks can't get up the nerve to get indignant about anything unless it's illegal. Especially on Slashdot, if you complain about someone who does something rude or inconsiderate, the inevitable response is: "It's a free country. What are you, some kinda communist?" Not only is this behavior not illegal, but it SHOULDN'T EVER be illegal. But it's still wrong! [If this comment gets modded up, there will be tons of responses from people who don't understand the concept of something being wrong and not illegal, but have no trouble at all with things that are illegal but not wrong]

Re:Illegal?

[Anonymous Coward]

Because it bothers the poster.

RealPlayer is slimy and evil, but we need fewer laws not more of them. We need more personal responsibility not less. Boycot Real, tell websites that you use to do the same, publicize their intent, but for goodness' sake don't involve the politicians.

Re:Illegal?

[sjames]

There several good reasons depending on why they did this.

If they are claiming (to advertisers or users) that the spam is opt-in, then their practice is deceptive/fraud (false advertising, etc)

If they try to claim that the users 'consent' relieves them from fines where spam is illegal, they have comitted a different sort of fraud that is approximatly the same as hiding a real contract behind a reasonable one that covers all but the signature line. (a long time favorite of moustache twisting villains in old movies, I might add). At the very least, it's as bad as using print so small that even a person w/ perfect vision needs a magnifier (in the case of disclaimers, and the health warning on cigarettes, that practice is specifically illegal).

I think it is fairly clear that REal intended for the selections to be deceptive. Deception of that nature is at least unethical, and in some cases, illegal.

Re:Illegal?

[jgerman]

I hate to defend shady practices but:

Right off the bat it is NOT misrepresentation. You did make a choice, you chose not to scroll down, part of the standard idiom of reading information on a computer screen, and lazily just click next. You not reading or clicking on something does not constitute claiming that you made no choice. You could easily turn the argument around (and it would be just as meaningless) if they weren't pre checkedby saying you weren't given the choice to say yes.

In a physical world example it would be like giving me a contract to sign but removing several pages from it. i.e. Not just sections that I jump over because it is awkward to review ala most EULA.

In a weak, and not applicicable physical example you're right. But let's make it more accurate. In a physical world example it would be like giving you a contract to sign and having multiple pages below the top one that you need to flip through to read, which is SUPRISE how it usually works.

Personally I feel like to be polite, all check boxes should be unchecked to begin with, but it certainly isn't, and shouldn't, be illegal to do otherwise.

Re:Illegal?

[vldmr_krn]

on Slashdot, if you complain about someone who does something rude or inconsiderate, the inevitable response is: "It's a free country. What are you, some kinda communist?"

Presumably this is because of the other type of person on Slashdot, that thinks "If it's immoral, it should be illegal."

Simple solution...

[Anonymous Coward]

Your email address is now 'a@b.com'. Despite what Trust-E has to say, Real has a history of ignoring privacy matters. I've never in the history of my using RealPlayers put in an actual email address, other than something with an @ and a .com in it. They can market to /dev/null all they like.

One more reason to not to install non-GPL software

[Stephenmg]

If we have to risk making "choices" that we had no idea about to install priatary software, then why install it?

I suppose not...

[Otter]

Is this illegal, or just annoying?

IANAL. Of course, if you wanted a real legal opinion, you'd ask a real lawyer. So here's my best guess:

There is no legal issue at stake here. Real doesn't need to ask your permission to send you spam any more than Laurent Kabila's widow and toner salesmen do. If a law were passed banning opt-out spam, then there would be an issue as to whether this constitutes opt-in.

The linked site, which does seem to be by an actual lawyer raises the question of legality, but in a hypothetical question about whether a similar technique could be used in an EULA. There seems to be precedent that it would be invalid.

Real Player

[koan]

I refuse to use real any longer and the truth of the matter is they are hurting them selves with these types of cheap tricks.
I only wish I could convince people putting up media on the web to not encode using real.

What's the F'ing problem?

[Anonymous Coward]

The boxes aren't hidden. They're at the bottom of a scroll window. So they chose to auto-check the last four. Big F'ing Deal. That should teach people to make sure they pay attention to ALL of the settings when installing software.

Move along. Nothing to see here.

MPlayer

[Anonymous Coward]

This is why things like www.mplayerhq.hu are so darned good. It can play the RealPlayer format with having to use the evil, user-unfreindly RealPlayer.

And MPlayer is open source so they can't hide this kind of crap on you

Sorry Windows people...this is a Linux thing (and yes, you can stream .rm with it)

illegal vs. enforceable contracts

[coyote-san]

IANAL, but this is something that anyone over the age of 12 should understand. Just because something is not "illegal" (or unlawful) doesn't mean that it's fully accepted. There is a gray area.

If you force me to sign a contract, it may not be illegal. But it will be unenforceable - contracts must be entered into freely.

If I sign a contract, then you change the pages in the middle, it may not be illegal. But it will definitely be unenforceable - you can't change contracts after the fact without the consent of all parties.

And in this particular case, you can't hold somebody to a contract if parts of it are never disclosed. It's one thing for the EULA to explicitly give them the right to do something on a "take it or leave it" basis, it's a very different thing for them to have hidden (or unduely hard to find) checkboxes to "prove" you agreed to optional terms.

This is the reason why every(?) court that has looked at EULAs has held them to be unenforceable - why the companies felt it necessary to force the issue via the UCITA.

Well, my state hasn't passed UCITA and I consider EULAs basically null and void precisely because of their widespread abusive use.

Didn't have any problem with it

[joshv]

As I recall, I noted that it was a scroll box, scrolled down, and unchecked everything. - thought it was sleazy, but I caught it.

I avoid using RealPlayer at all these days - I can rest assured that if I have not used it in two weeks , when I fire it up it will ask "There is a new version of Real One player available, would you like to update?".

Anything that needs updating this frequently is a massive POS in my mind.

-josh

No laws agains stupidity...

[Xerithane]

Other people have posted similar examples from other applications. Is this illegal, or just annoying?

If you don't read the fine print, and agree to something, and it burns you, and you complain, you are stupid.

It's not illegal. I'm sure somewhere they fully detail out everything, so that the next person who thinks it's "illegal" and tries to launch a suit can be fed the EULA that they agreed to. It's like people bashing Gator for being shady spyware when they fully disclose on their website what they do in big bold letters.

How is this illegal?

[dada21]

"There should be a law!!!" I hear it every day. I figure I'm in some socialist Green country, but then I realize I'm not. People are just unbelievable.

If someone gives you a contract in .001 font size, no it is not illegal. It is up to you to say "I won't sign this, and I won't use your product."

If someone decides to "hide" some options down a scroll list, or maybe on a back page, it is still your responsibility to see if there is more, before signing it.

If they ask you to "Accept" a 40 page long list of rules and rights you are relinquishing, it is not illegal -- its just lazy of you to scroll through it all haphazardly and click "Agree!" You don't need their product, so close the window and say screw it. Follow up with a letter to their management, and if enough people complain, maybe things will change.

If you enter a fake e-mail address in, THAT might be illegal. Check the text to see. If anything, entering "OK" and moving on just gives the companies the knowledge that you agree (which you do by accepting their terms). Don't regulate these guys with LAWS, regulate these guys with MARKET tactics.

There should never be "consumer rights." I hate that term. YOU are not a consumer, and THEY are not a producer. You are BOTH market exchangers. They are exchanging their product for either your money, your e-mail address, or your personal information. You feel that any of those items you are exchanging is worth less than their product. This is true of ANY market exchange. You produce your cash, or your address, or your information, they product an item or a service.

There are no magic "economic" theories behind any of this. This is common Austrian School of Economics theory. It works. Go check out http://www.mises.org/ to learn more.

Consumers don't exist. Producers don't exist. We're both just equal partners accepting one person's services or products for the bartered exchange for another.

Keep the government out of it.

Re:How is this illegal?

[regen]

If someone gives you a contract in .001 font size, no it is not illegal. It is up to you to say "I won't sign this, and I won't use your product."

Let's take this arguement to the extreme. What if you and another party are entering into a contract, and you review the contract and everything seems reasonable so you sign this contract.

The other party then asks you to give them all of your money, as that was part of the contract. You dispute this, claiming that the contract says no such thing. They then pull out a microscope and show you that one of the periods in the contract contained a clause that required you to give all your money to the other party.

Is this contract valid?

No, because the other party was not negotiating in good faith. They were clearly being deceptive and this contract would be invalidated in any court in the land.

I contend that if Real is intentionally trying to hide the information from the end user, then they are not negotiating in good faith. The are intending to decive the end user, and the contract could be voided.

Horrible

[(trb001)]

Is this illegal, or just annoying?

How can you even suggest this is illegal? These are default options. I guarantee you would be pissed as a first time user if Apache didn't come with default options. Whether or not this is in the best interest for the consumer is debatable, but easily justifiable by Real. A simple argument would be that the checked boxes provide helpful information to a new user (funny, i know, but bear with me).

This isn't a product where you must provide a legitimate email address to register. You're getting something for nothing, literally, and it was your choice to download. Skeazy, perhaps, but most certainly legal, and not a terribly large pain in the ass. Compare it to other applications out there (Gator comes to mind, that vile, repulsive worm of a legal piece of spyware) and I think you'll find this process is quite pleasant in comparison.

--trb

Re:I firewall Realplayer.

[Target Drone]

Software firewalls are great for managing misbehaving software installations like Realplayer.

It does seem rather ironic that nowadays my firewall blocks more traffic coming from my own machine then from hackers on the net.

It's what used to be called fine print

[Anonymous Coward]

People have been doing this since the early days of contract law. All the nasty terms in a contract are printed really small. There's nothing new here.

Re:It's what used to be called fine print

[susano_otter]

That's not insightful!

This is insightful: The big difference is that it used to be quite clear when you were looking at a contract, and you knew you were supposed to take a good look at it (preferably with a lawyer). Now that contracts are masquerading as installation checkboxes (all the better to fool you with, my dear), All those End-User 101 students are suddenly flunking Advanced Installer Trickery without even realizing they'd been enrolled in the class.

Re:I firewall Realplayer.

[pmz]

Learn to use software firewalls if you can.

You must be referring to firewalling on a per-application basis rather than on a per-IP-address or per-protocol basis. Are there good application-level firewall software for UNIX out there? How would a UNIX firewall genuinely be able to tell one application from another? Creating a new socket doesn't exactly require registering the application name (or does it at some level?).

a Codified Society

[Madcapjack]

>"There should be a law!!!" I hear it every day.

Yeah we do it hear it everyday. And it is a terrible thing to hear. At one end, we feel that the government is ultimately the only institution that can protect us from greedy and unscrupulous corportations, and at the other end we get tired of the government interfering in everything.

The law is becoming more and more important in our society. We are becoming an explicitly codified socieity. there are a lot of reasons this is the case. one of them, though, is that politicians need to get re-elected, and if they aren't passing new laws all the time, they are seen as not doing anything. for my part, i think that education, for example, has been reformed enough for a while. any statistician knows that you can't evaluate the results of some reform without ample time to evaluate it.

>Consumers don't exist. Producers don't exist. >We're both just equal partners accepting one >person's services or products for the bartered >exchange for another. agreed! except for one thing. we aren't equal in the larger scheme of things. your statement sounds more like a justification of the inequalities of the capitalist system than anything (actually, it sounds like you are saying they don't exist). But I won't say anything more, because I'm not familiar with the Austrian school of Econ. i will certainly go and learn more about it. ( :

as for Real Player? its not illegal, just shady, annoying, and we should write them and tell them that. and boycott. if they hid it in a way that you would have to hack into the program or install it first to see, then that would be illegal (hopefully)

madcapjack

Re:Other RealPlayer Annoyances.

[dracken]

StartupCPL by Mike Lin is a very nifty utility with a gui to disable programs started by the registry. Its freeware. Also check out the software in his page which notifies you if any other application attempts to change the registry so that it gets automatically started up during booting.

Re:I firewall Realplayer.

[PhxBlue]

Not only funny, but true! Most applications make it very easy to block their dishonest ways, though: ICQ, MSN, AIM, and YIM all use port 80 to download banner ads and upload. . . whatever it is they upload; while the actual message traffic is handled along other ports. Denying port 80 traffic to any application but the web browser is a reasonably good means of making sure you only send/receive the content you want to send/receive.

Re:If you're stupid enough to use your real addres

[StrawberryFrog]

If you're stupid enough to use your real address then you deserve to get spam.

That's utter crap. It's right up there with "if you don't install an alarm, you deserve to be burgled and the burgler will be innocent" and "if you wear such a short skirt, you deserve to be raped"

To hell with you, troll.

Re:If you're stupid enough to use your real addres

[ruriruri]

Doesn't that attitude negate all benefits from the "separation of tasks" principle that has served us so well for the last few million years ("You hunt, I'll gather")? If everyone has to be so nerdishly spam-aware, less effort is available for other more vital areas of society.

Unrelatedly, does anyone else find themselves reading Slashdot comments in the voice of the Comic Book Guy? It usually fits so well it could be mistaken for performance art.

Re:Probably falls into same field as minimum texts

[regen]

These are similar to the reasons why people hire lawyers...you don't want to get screwed by some hidden text somewhere that you were too lazy to read, so you have someone else read it for you.

Um....No. If you are hiring a lawyer to read a document for you because you are too lazy to read it, you are wasting a lot of money.

The main reason to have a lawyer review contracts for you is to discover (in the lawyers opinion) how the contract will interact with local laws. An apparently innocuous clause in a contract can interact with laws to produce bad results. Just because a lawyer has reviewed a document doesn't me that you shouldn't also. You should question the lawyer in detail about anything in the contract that you don't fully understand. Don't sign anything that you don't understand.