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

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.

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...

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.

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).