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Judge OKs Competitive Pop-Up Ads
Mirkon writes "A while back, U-Haul filed suit against adware giant WhenU for displaying competing advertisements to users as they browsed U-Haul's site. Friday, District Judge Gerald Bruce Lee's ruling dismissed U-Haul's suit, saying '...the fact is that the computer user consented to this detour when the user downloaded WhenU's computer software from the Internet,' and 'Alas, we computer users must endure pop-up advertising along with her ugly brother, unsolicited bulk e-mail, "spam," as a burden of using the Internet.' While the ruling was issued in the context of unfair competitive marketing, it's speculated that this will have broad implications in the fight against adware - and they aren't kind to the user. WhenU chief executive Avi Naider is unfortunately quoted as saying 'This is a victory for consumer choice -- it ultimately protects consumers' right to control what they see on their computer screens.'"
Consumer choice is what we all want. But, obviously, that comes with a responsibility to make the proper choices for ourselves. Hopefully, most people on Slashdot are capable of this.
Use Mozilla? Block all unrequested Pop-Up ad's. Or maby you should pay ATTENTION to what you click. Common sense helps too. An example what not to do: (Bob see's a pop up ad offering free money) Bob: "This is awesome! This is my lucky break!!!" *click* Computer: --Crash-- Just pay attention to what you click on, be aware of different browsers that can annihalate Pop up's. And don't click links that you don't trust.
OMG OMG OMG WTF OMG WTF BBQ STFU RTFM, OMFG OMG OMG OMG ROFL LMAO OMG WTF STFU ROFLMAO
I haven't seen one pop up since I started using mozilla. That my friend is "controlling what I want to see"
'This is a victory for consumer choice -- it ultimately protects consumers' right to control what they see on their computer screens.'
Considering that many ad-ware and spy systems disguise themselves as fun download toys or much needed upgrades...
I haven't received one popup since I started using an old version of Opera years ago.
Even though we all hate ad-ware and we know the average computer user is vunerable to it, the judge just can't find WhileU guilty when the user installed the program.
DO NOT WRITE IN THIS SPACE
okHow many times has Gator and their ilk created tertiary annoyance? (tertiary annoyance being a friend asking you, mr computer person, to take it off because it is blatantly annoying them)
These users never requested such software to be placed on their machines, they simply downloaded other software with which it is bundled.
This ruling was based on the idea that the user chose to have such a program on their machine. Obviously the judge was not one who has used the internet very heavily.
"this is the gloaming"
radiohead
Here's the headline: As much as WhenU's invasive popups and banner ad coverups stink, you have a right to have software do whatever you want to the websites you view. You also have the right to agree to any EULA you want. So, if you install a program that has an EULA that says it's gonna kidnap your web browser, and you say yes, you're stuck with it.
U-Haul can't go to court and say that WhenU is interfering with their website when their program pops up competitor's ads when you visit U-Haul's site. U-Haul's site isn't being hacked, it's just that the user is using a program that supplies the ads. You're free to run any ad blocking, subtracting, or adding program you want. And WhenU isn't hacking anybody's machine, their EULA says what they're gonna do so no crying foul when they actually do it.
Yep, as dump as WhenU's program is, if you click "Yes" on an EULA you're presumed to have read it and presumed to understand it and presumed to have liked it. Let the browser beware, if you welcome a adbot onto your system, nobody's gonna save you from yourself.
Well, this could be a turning point for either side. I see a few possibilities:
1) Nothing changes, and these pop-up ads become more intrusive and more bold
2) These ruling collides with the NY Times suit against Gator, and this gets kicked up a few notches in the legal system
3) Legislators change the law, by just the right amount. They essentially stay out of it, but require explicit, unambiguous disclosure before engaging in these type of shenanigans
4) Legislators decide to over-legislate, and provide an implicit endorsement of Palladium or some Ashcroftian scheme under the guise of protecting people. And the nanny state advocates (on the left & right) will be happy.
Let's hope it ends in either option 2 or option 3.
This is a good thing; I disagree with the negative tone.
The judges reasoning is sound. If it were otherwise: Do you think it would be illegal for a future web browser to not display what it detects to be advertisements? Mozilla pop-up blocking might be deemed illegal as well, if the judge reasoned otherwise.
I don't know if this software is commonly bundled with other software so that a common user isn't aware they are installing it. Regardless, this has nothing to do with a supposed intended purpose. Just as p2p shouldn't be made illegal for a side effect. Since when did price comparison become illegal?
ZEN is a prime number in base-36
"While at first blush this detour in the user's Web search seems like a siphon-off of a business opportunity, the fact is that the computer user consented to this detour when the user downloaded WhenU's computer software from the Internet," Lee said.
That sounds like a good ruling to me.
Since it certainly means that the user can consent to software which blocks ads on certain web sites without the web site owners being able to claim the user's are "stealing"
How can you make a choice when they hide what you are getting? Look at Real Media if you do not understand. Do you want your "MP3 player" sending info to some website about what you listen to, but not telling you unless you look for it under preferances-->tools-->settings-->hidden-->secret-- >we'reassholes-->nochanges-->readonly?
Rosco: "If brains were gunpowder, Enos couldn't blow his nose."
I agree.
They stated "it ultimately protects consumers' right to control what they see on their computer screens."
This is true, just as you said. It has the effect of preventing a sort of censorship of competitors, because now competitors can advertise directly through the new advertising mediums. So now the consumer can decide if it really is worth it to go with the competitor and the competitors now have to decide if it is worth spending more on advertising. In the end, competitors need to realize that if you provide excellent products/services, then you can keep your current customers no matter the ad's and gain new ones by word-of-mouth. Advertising is important. If one ad company gains too much control they can do what MS does, except in the realm of advertising. One problem is that many of these programs install themselves with little notification to the user. New forms of advertising aren't bad if people accept it and it interferes as little as possible and provides quality advertising that people could really use as opposed to mass advertising (like spam) that hopes at least a few are listening. I believe more thought needs to be put into the entire advertising sector and laws created and destroyed that will create a more competitive market where few are disappointed. Then again, will this ever happen? Probably not, unfortunately there are too many large companies that do what they can to stay in control. I have hope in the future though. The internet is already changing advertising in many ways. This law is just another step towards a better system.
Question everything.
The fact is, your mom was prompted with a yes/no prompt that had an EULA button, and without reading the EULA she clicked "yes". That is a binding agreement, and always will be or most of e-commerce is about to grind to a halt.
Read what you click "yes" to... it's the digital version of a handshake agreement. You might not understand what the sign behind the swindler says, but by shaking his hand you've agreed to the deal...
It should read:
"Alas, we totally clueless idiot computer users must endure pop-up advertising along with her ugly brother, unsolicited bulk e-mail, 'spam,' as a burden of using the Internet"
Everybody else can use Thunderbird et. al. and use a spam filter. Maybe that's not a bad thing as it might finally turn some of the unwashed masses off the internet.
I asked for a refund - and got my monkey back.
Sorry, that's just not right. Go read up on contracts of adherence and what can legally appear in a non-negotiable contract. I'll give you a big fucking hint: an EULA can NOT contain anything you want it to, because it's not a negotiated contract, period.
Lots of people seem to think that regulation is the solution to overly long and/or complex EULAs. I disagree - I say let the market decide.
If an EULA is just too complex, what a user should do is reject it and take their business elsewhere. The company presenting the EULA will have to fix it, or die in the marketplace.
The only problem at the moment is people blindly clicking 'Yes' because they don't think it matters - perhaps once enough people are burnt this will change.
(For the record: I happen to believe that EULAs on products you've already paid for (ie you only see them once you break the shrinkwrap and run the installer) should not be binding, but for a different reason - you've already bought the product and the conditions of sale can't change after the sale is completed.)
...but this is a good thing. The overall thrust of the ruling is that you can install software that does things large companies don't like - specifically, that interfere with their marketing alerts you to competitors offers, and otherwise helps you (at least in theory). This is good - if you doubt it, imagine the reverse. What if U-Haul had WON, and now there was a precedent saying that U-Haul got to micromanage my desktop and browsing experience at that level?
The specific details of the ruling benefits some nasty adware, sure - but the problems with the adware aren't that it pops up ads - there's nothing wrong, per se, with software that does that - IF YOU WANT TO INSTALL THAT SOFTWARE. (Sorry for shouting.) What's wrong is the deceptive tricks used to get the adware installed, and that is NOT at all related to the decision. I dislike WhenU, and have no beef with U-Haul, but this was still the right decision.
I'll say it again - a judge just ruled that you have the rights of control over your browsing experience that you'd expect. This is good. Step two, of course, is getting some rulings mandating disclosure and truth-in-advertising for the adware providers, but that is, and should be, a seperate issue.
Then don't install adware.
Wow, I should not post when knackered.
The average person simply doesn't understand the implications of installing browser plug-ins. Most users are using Internet Explorer, and the default settings of Internet Explorer allow the individual to be prompted for plugins that have security certificates. These security certificates are in and of themselves a ruse, since "trusted" source only means the spyware company bought a certificate from someone like Verisign. The average user, however, sees all this and says "hey, why not, must be ok, right?"
The real solution here is to develop good habits in users, including the use of alternative non-M$ browsers/OS, changing default browser settings to enable the installation of possibly only the most common plug-ins like Flash/Shockwave, automatic set up of Javascript-disabling and ad-disabling CSS, pop-up and cookie control apps and settings, firewall apps, hosts files, and of course the regular use of programs such as Spybot and Ad-Aware. The amount of spyware/malware that I find on computers is phenomenal, and when I consult for individuals or families they are always astounded at the amount of this crap on their computer. Particularly when I explain to them what's going on, they invariably get quite angry at the peddlers of this junk. They always say "well nobody told us about this." I lament that I am the first.
Maybe it's time for the geek community to develop some altruistic marketing schemes and start educating the public at large about what's out there. Until M$ fixes a horribly broken set of Internet access apps, someone has to fill that void. Any takers?
I hope I never see you complaining about infringements on free speech. This is a federal judge, as such he is subject only to the US Constitution and federal law (so no State issues unless they conflict). Under Article I and Article III of the US Constitution, the judge has no authority to create law. Under the First Amendment, Congress shall make no law infringing on the freedom of speech. Spam, like it or not, is speech. So Congress can't outlaw it because it's annoying speech, and the judge has no authority to create laws because he doesn't like something. So, it seems on the basis the case was argued (of course, there were few details given) nothing should have come from it. Since it wasn't the consumer who brought the lawsuit, whose bandwidth and screen realestate is being used to display the ad, there can be no charge of tresspassing, which is the one way under the Constitution that such spam can be stopped. The Fourth Amendment's garuntee that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures should prove effective at stopping such practices (it does not limit this right to be secure against unreasonable government searches and seizures). But unfortunately, this was not an issue in the case due to the parties involved. If a consumer brought the case and argued the Fourth Amendment and laws based upon it and THEN the judge threw out the case, I would agree with you. As it is, this case was a speech issue, something the Federal Court did, in fact, have no authority over, and so rightfully the case was dismissed.
common sense: noun
What those who are ignorant of the subject matter think; usually wrong.
I suppose that you have never used a Dell or a Compaq. Look at all the installed programs that come standard... 15 Dell****.exe programs and 26 Compaq/HP****.exe stuff. And they have autoupdaters... Preinstalled spyware is alive and well and playing lichen on mass-built machines. Welcome to the revolution.
Why oh why didn't I take the purple pill?
Basically, this case decided that *U-Haul* couldn't complain against WhenU's system on the grounds they chose to argue. This is a good thing; if a system *like* WhenU's existed that *didn't* suck - say, a Mozilla sidebar that would automatically Pricewatch search for you; heck, "What's Related..." is even closer - we wouldn't want the 'big bad company' controlling our viewing. If you can't run WhenU, then should you be able to run a word processor, when you could be using it to complain about a product? Do we have to prove 'substantial non-infringing use' for *every* software on our machines before we can visit corporate sites?
But on the same token, yes, WhenU sucks. So file a separate lawsuit, targeting the deceptive *installation* practices, not the content. And if you lose that one, petition for laws against deceptive installations, not laws protecting corporate interests.
Why's this so hard?
Why is this a good thing? Well, think of the alternative. People dictating how a web page must be rendered? Where would style sheets be in this world? Would there have to be a federally dictated "standard rendering" to say how HTML should be displayed so that users don't bastardize it to their own ends by replacing or removing ads?
And, if the answer is no, then how do you propose wording a law that would prevent overwriting ads on a web page while not requiring such a standard?
And what of lynx, hmmm? It completely doesn't show the content in the standard format. Ban it? Only have the law apply to graphical browsers? See what I'm getting at? It's a pain in the ass.
Far better to have the freedom and let it be. If you don't want the adware, don't click the "I Agree" button. No one is forcing these people to install adware, for heaven's sake. What ever happened to personal responsibility?
Stop the legal insanity!
You can stop most pop-up adverts and you can stop most spam. Instead of making draconian laws that involve banning software - the very same type of laws we try to stop when its the DMCA. We can use technology to stop these annoying things. Any sort of html based pop-up can easily be stopped in the browser or via a proxy, if its something you downloaded then dont download it! Most adware programs have been cracked - eg. Kazaa lite to stop adverts so you can use the cracks and show the marketing people just how much you hate intrusive adverts. Dont let the government fill the internet with stupid legislation thats un enforceable and usually punishes people who have legitimate uses against it.
This comment does not represent the views or opinions of the user.
Spam *IS* free speech.
However the total issue of spam and spam fighting includes alot more than free speech. Free Speech is a side issue to spam.
If spammers set up their own mail relays (as some have done in the past) and sent their mail through them JUST LIKE EVERYONE ELSE, then nobody would give two shits what the spammers were sending.
Of course, a large number of people would just blacklist them by ip to keep the spew out, and everyone who liked thier filthy spew would be prefectly free to recieve it. Hell mail filters could even be setup to reject based on ip and reciever so users could individually choose to block spammers....
Free speech would be protected, and my ability to tune out your free speech and go about my buisness would be protected.
This is NOT the current case.
Spammers prowl the net looking for cheap and easy ways to bypass filters. I put up a filter that blacks spam... they know people don't want to listen to them, and so they activly try to subvert peoples blocks. They jump IPs, they switch ISPs, they search for open servers and then hammer the fuck out of them, thus shifting the cost of sending their spam to some random innocent person who just setup their mail server poorly or perhaps too "trustingly".
ME going around sending mail to you is free speech. Me trying to trick you into sending mail or directing the charges for sending my spew to you is NOT free speech, and thats really the main problem with spammers... they don't acept the cost of their own spew, they shift as much of that cost as possible to others.
Never mind the high percentage of spam that is just scams, Nigerian scams, fake products, ilicit products etc etc. That stuff isn't free speech either. You do NOT have the right, for example, to tell me you sell toner cartridges and give me part numbers and cost and where to send my money to, unless you intend to send me toner cartidges after you cash my check.
If spammers would just use their ISPs smtp server and stopping jumping accounts and trying to exploit random peoples smtp servers, and basiclaly using every underhanded trick they can think of to trick people into reading their mail, then they would have a leg to stand on in the free speech arena and I would say fine, let them spew.
-Steve
"I opened my eyes, and everything went dark again"