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

Implied Consent

[Flounder]

IANAL, but I'm sure somewhere in the EULA, they've written themselves a loophole.

BTW, isn't it ironic that the acronym for I Am Not A Lawyer is I Anal??

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?

[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?

[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.

They deserve it!

[xmuskrat]

Getting spam is almost as bad as... using RealPlayer. At least they are consistant.

I firewall Realplayer.

[Bonker]

Let's face it. There's stuff out there that you want to see that comes in real format. If it's not downloadable, then I skip it. But if it is downloadable and not restricted to stream-only playback, then I don't hesitate to fire up Real Player, secure in the knowledge that it will never be able to communicate my personal details.

Learn to use software firewalls if you can. Hardware firewalls are great for keeping people from attacking you, but software firewalls are great for managing misbehaving software installations like Realplayer. I've never had a better security tool.

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.

Probably falls into same field as minimum textsize

[TibbonZero]

While I don't know the laws on minimum text size, I am sure that a company cannot make you sign something in .001pt Times New Roman. This is probably very illegal for them to do, and they will probably get away with it...

No kidding

[kableh]

This has always bugged me about Real Player. Their newest player installs a lame little executable, that isn't easy to get rid of, that starts up their little message center in the system tray. It was bad enough with their old version which loaded RealPlayer every time you booted, but at least you could turn it off.

These days, if it is encoded in Real it isn't worth my time to watch. I make sure everyone I know is aware of this too.

Already knew that.

[da3dAlus]

I noticed that quite a while back when I installed RealPlayer. I say it's annoying just because I have to remember to disable those checkboxes. I also say it's gotta hurt them, because it makes me place my feelings about Real (the company) at a very low level. I don't think it's illegal, and I know they're out to make money like everyone else. However, I say don't screw over your customers, and they'll come back. Piss them off, and you will certainly regret it later. And yes, I know the RealPlayer I download is the free version, and I'm not technically a customer, but if they pull that stuff with me on the free products, I can only imaging the "features" they'll put in the big version I pay for. Again, my opinion of them is quite low because of their tactics.

been there for a while now

[Dynedain]

Yep, know exactly what the article is referring to. There's a scrolling box for 'we can market these things to you:' and by default none of the visible checkboxes are marked. However, if you actually scroll the box there are 5 (i think) options at the bottom of the list that are checked.

Tricky Tricky Tricky

And this isn't just on installation, it happens if you fully open RealPlayer to change the stupid take-over-your-computer prefferences.

This is one (of the many) reasons why I don't install RealPlayer on any of my machines, and encourage friends to remove it from theirs. If sites don't have their downloadable content in an alternative format (QT, WM, MP3, Ogg, i don't care which) I just won't watch/listen to it.

I'm doing my part to force 'em out of business. Sure, they are providing competition for MS/Apple, but I find their business practices despicable.

Re:Simple solution...

[Anonymous Coward]

Thanks you insensitive clod. My email address is a@b.com, and I have always wondered why I get all this junk mail from Real!

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.

Yet another reason...

[morganjharvey]

This is just another reason why I don't use RealPlayer -- I decode my streams by hand. I have the help of fourteen trained cats, and as the stream is "played' accross a readerboard in front of us we all translate it into .au format.
A central server compares all the files in realtime and averages them to compensate for any typing errors/drunkennes.
It's a surprisingly efficient system. Right now I'm listening to the White House's response to the leopard inspectors in Iraq who just found a forbidden stash of Gucci pants in an Iraqi bunker.
I'm eager to upgrade to a 28-cat system, thus effectively doubling my sample rate and allowing me to listen to stereo feeds and possibly even allow video by... er.... damn, I gotta get a life...

Other RealPlayer Annoyances.

[SlashChick]

I installed RealOne recently, and much to my dismay, they have removed the preference setting to kill "StartCenter". StartCenter is the annoying thing that sits in your system tray and starts up with your computer. In RealOne Player, not only does it have a systray icon, but it also places little pop-up "message" windows on your computer! It's completely disgusting.

There are no preference settings in RealOne Player to disable this, so I thought I'd post this here, since I'm sure this thread will be filled with people who hate RealOne as much as I do.

The startup code for the popup window is hidden in your registry. The easiest way to get rid of it is to use 'msconfig', which comes with every version of Windows except for 2000. (In a minute, I'll explain how to get rid of it on Windows 2000 as well.)

To use msconfig, go to Start->Run and type in 'msconfig' (no quotes.) Go to the Startup tab. You should see an entry beginning with "real". Uncheck the box next to this entry so that it won't load on startup. In addition, look for an entry called "eventsvc" whose command is "c:\Program Files\Common Files\Real..." This is part of RealPlayer as well, and you can uncheck it safely. (While you're at it, this is the place you can disable those useless ATI control panels and other muckety-muck that likes to sit down in the system tray. Don't worry; you can always go back and re-enable the services later if you disable something you need.)

Once you've unchecked whatever you don't want to load, hit "OK". You will be prompted to restart your computer to make the changes take effect. Go ahead and restart. When you log in next time, you'll see a box explaining that your system is now in "diagnostic" mode. Check the box that says "Don't show me this again" and click OK to be on your merry way (hopefully with a faster bootup time.)

In Windows 2000, you can manually edit the Registry to get rid of these keys. Unlike msconfig, there is no going back, so make sure you know what you're doing! Look in HKLM or HKCU under Software\Microsoft\Windows\CurrentVersion\Run. You should find the little bugger there. Delete it.

(Standard disclaimer: If you screw up your computer doing this, I am not responsible. If you don't know what a key is, it may be best to leave it alone. Doing a Google search may help you figure out what is necessary and what isn't. In general, leave anything that has to do with your hardware alone, especially modem software, as your modem may require it to work properly.)

Also, when installing RealPlayer, always take the time to read the installer to know what it's doing! You can, and should, disable most of the crap it tries to do, such as opening MP3s and auto-updating your RealPlayer with the latest advertisements. Try "compact" mode as well--that should kill most of the remaining advertisements.

I hope this helps those of you who are (unfortunately) faced with RealPlayer's wrath. The tips above can help to tame your system and make it a bit nicer to use your computer.

As always, if you have relatives who use RealPlayer, or you maintain it in an office setting, it may be best to perform that procedure on every computer. There's really no need for workers to be distracted by RealPlayer advertising. If you're using msconfig, don't forget to restart the computer and disable that "diagnostic" mode box that pops up, as well, or your less technically-inclined relatives/co-workers may be calling you for help! ;)

Enforceability

[Chazmyrr]

A key point on the issue of consent was raised in the comments to the original article. This or a similar case is probably why Dark Age of Camelot requires you to scroll through the EULA and rules of conduct before the Agree button can be clicked. I think this practice will become more widespread in the future.

Re: Cheap Trick: RealPlayer Windows Installation (Score: 1)
by Barry on Thursday, January 16 @ 11:43:36 EST
(User Info | Send a Message) www.wbklaw.com
The practive may or may not be "unconscionable," but it does likely fail to create an enforceable contract, at least in the 2nd Circuit. See below.

In Specht v. Netscape Communications Corp.,[*] the court stated that, to be enforceable, click-wrap and shrink-wrap agreements require users to perform an affirmative action unambiguously expressing assent. In this case, there was one small box of text referring to the license language, which was "couched in the mild request 'Please review and agree . . .'" The court found that this was a "mere invitation" and not a condition. Failure to require users to indicate assent was "fatal" to Netscape's argument that a contract had been formed. To be enforceable, language must indicate that a user "must" agree to the license terms. Importantly, for purposes of this post, on appeal, the @nd Circuit found it important that the notice of the existence of the contract was not visible until a user scrolled to the next screen and not visible when the user made the decision to "accept." The Second Circuit said that a reasonably prudent person would not have known or learned of the license terms prior to using the software and could not be held to have had "constructive notice" of the terms. The Second Circuit held that "in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms." If the hidden terms at issue here ("consenting" to unwanted spam) would be material to the user's decision to click/accept, Specht may be instructive.

[*] Specht, 150 F.Supp.2d 585 (S.D. NY 2001), aff'd Specht, et al. v. Netscape Communications Corp., et al., Nos. 01-7860(L), 01-7870 (CON), 01-7872(CON) (2nd Cir. October 1, 2002).

Not a problem

[Trogre]

Just as well we don't need to use realplayer any more for "realmedia" content.

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.

Re:Tricky indeed - they got me..

[octalgirl]

Around 2 years ago I purchased the real RealPlayer, because I was going to do some video development with it. I bought it online, and the purchase process was horrendous. After I clicked buy it, I was taken to a screen with a ton of things checked off for me, including signing up for their monthly subscription for realplayer maintenance - the gold package I think it was. I unchecked everything, but when I clicked next, there was another screen with different things and the gold player was checked on again. I unchecked everything again. Third screen, same thing.

Since I'm in tech, I would like to think I have some idea what's going on and not get tripped up by this stuff. But I can't imagine how the average user gets through this. Anyway, on the next months credit card bill, there it was, 11 and change charge for RealPlayer maintenence. I swear I unchecked everything. I wish I had taken screen shots to prove it. So I go on their web site to try and cancel. To get to my user account was very difficult (of course I wasn't aware I really had one so I had to figure it out) Under subscription maintenence, I finally found the option to cancel. I click cancel. Up pops a phone number to call to actually get it canceled. I was very busy, lots to do, and I think they counted on that. I had planned to cancel when I got home, but of course I forgot. I kept thinking about it at work, but when I got home I would forget again. Three more months went by, before I finally remembered on the weekend to sit down and take care of it. I had to go through the online process again to get the number, which I finally called and got it cancelled, which of course the guy tried to sell me real player again! Never, never, never again!!!