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.'"

Comments

This is good

[Anonymous Coward]

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.

Re:This is good

[AntiOrganic]

Like, morons choose to post something like:

1. Give consumers choice
2. Discreetly install spyware on computer
3. Profit!

I am really sick of seeing these. Oh, and "I, for one, welcome our new spyware ovrlords" really isn't funny either.

Popup? what popup?

[deadmongrel]

I haven't seen one pop up since I started using mozilla. That my friend is "controlling what I want to see"

Re:Popup? what popup?

[Anonymous Coward]

It's a good thing this decision didn't go the other way, or popup blockers like Mozilla or Google Toolbar could be ruled illegal.

The decision was that the end user has the right to control what advertising content he or she sees when browsing the Internet.

Re:Popup? what popup?

[mark-t]

Mozilla doesn't "block" popups, per se... it's just a web browser.

But as a full-featured web browser, it carries within it a javascript interpreter.

Mozilla devs have fidddled with the javascript interpreter somewhat, giving the end user finer control over what javascript commands are allowed to execute, one of the selections being to not allow javascript code which opens a new window to execute, unless that code is executed in direct response to a mouse click.

Ironic

[Mad-cat]

'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...

Re:Ironic

[Ignis Flatus]

When running either Spybot or AdAware (can't remember which right now), it detected spyware on my machine that was implanted when I installed a wireless mouse and keyboard from Logitech. So, those are the dangers we face now. Every time we add a peripheral to our machines, we could unwittingly be installing a trojan program. Probably, there was mention of the trojan somewhere in the EULA, but I personally take this as an act of aggression by the device manufacturer.

Re:Ironic

[Pxtl]

Actually - this is a good point. After all, if you deliberately installed a plug-in that would advertise alternatives to services you were viewing on the internet - which is exactly what U-Haul is fighting against - would that be a bad thing? In the end, it would be similar to the "if you like this, you'd like" features found on many music/book sites.

People shouldn't knee-jerk bash this ruling because it finds in favour of pop-ups. The problem with pop-up plug-ins is _not_ that they advertise competing products to the web-sites being viewed - if the user wants their computer to offer that service, that's up to them. The problem with pop-up plug-ins is that they install themselves with subterfuge and deceit.

If the installers/ads were honest a la "Bonzi Buddy will be your internet friend and also take over your computer and force feed you ads" then this whole plug-in mess wouldn't be such a problem.

That, and sites that pop-up auto-installs on entry with such software as Bonzi and Gator should be boycotted. Any site that attempts to install without warning or request should be considered an attempted attack.

These programs aren't malicious because they produce pop-ups and have a better advertising system than the viewed websites - they're malicious because they install themselves forcefully, deceitfully, and with false pretenses.

Re:Ironic

[JayBlalock]

Exactly. People often seem to expect legal verdicts to be more broad or far-reaching than they really are. I agree with the judge 100% in this case - in LEGAL THEORY the owner's right to make their computer display whatever they want FAR outweighs the right of a corporation to have their advertisements be seen.

I mean, think about the inverse - the judge rules that U-haul's right to have their ads be seen trumps. That would be an almost direct precedent making popup blockers illegal. And those are something that users DO choose to install.

Now we just need someone to sue Bonzai for misrepresentation of product. That would be a pretty good suit, considering that the cute cartoon monkey seems to be geared to appeal to children. (the "Joe Camel" strategy...)

Re:Die pop-ups die!

[mph]

Die pop-ups die!

Why, it's German for "The pop-ups! The!"

Re:Popups? What are those?

[AntiOrganic]

I haven't received one popup since I started using an old version of Opera years ago.

Well in a way it is good news.

[SmallFurryCreature]

If I am free to run an ad program to blok their ads. Then I am free to run any program that bloks ads.

Just because adware programs choose to put other ads on top doesn't stop me from putting a white image on top. Or perhaps not even loading the image in the first place.

Sure this is already possible and lots of people do it. But the legality was often in question. (You are allowed to view the contents of the site in exchange for viewing the ads) Now with this ruling it isn't anymore.

Ad blockers are proven legal in court. That is cause for celebration isn't it?

The right decision

[Erick the Red]

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.

Stupid EULAs still count... may the browser beware

[LostCluster]

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.

It's a choice...

[devphil]

between the devil we know and the devil we don't.

Okay, fine, popups are legal. That particular devil we know very well, and I gots my armor of righteousness loaded up at boot. But if popups (even competitive ones) become illegal, then who knows what the poodlefuckers will come up with next.

Disagree with Negative Tone

[LionKimbro]

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.

Dum dum...

[John Seminal]

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?

Re:Oh yeah, they really 'consented'

[Fnkmaster]

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.

Adware will be in everything...

[yintercept]

As soon as the adware marketing plan is fully legitimized, then there will be tons of things that include adware. All computers will come equipped from the manufacturer with adware installed.

imagine the day when ISPs begin maximizing their profits by piping ad information into your machine. I doubt that the judge (who I suspect will be justly compensated for his ruling) has a clue about what he is unleashing.

Speaking of adware, I installed mouse a month ago. The friggin mouse program had an adware component. It won't be just free ware and trojans. Adware and spyware will be in everything. There will be no consumer choice.

Remember to wipe when-u...

Re:Adware will be in everything...

[CrowScape]

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.

I hate to say it...

[Cody Hatch]

...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.

What's really needed is consumer education

[StandardCell]

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?

Are dumb laws better than no laws?

[Anonymous Coward]

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?

[Sigh] ...here's some FREE fixes for Windows users

[Quizo69]

http://www.proxomitron.info/ - The Proxomitron (popup, banner, webbug, everything bad on the net killer)

http://security.kolla.de/ - Spybot Search & Destroy (spyware/keylogger/trojan killer)

http://www.free-av.com/ - AntiVir (virus scanner)

http://www.zonelabs.com/ - ZoneAlarm (firewall)

http://methlabs.org/methlabs.htm - PeerGuardian (anti-RIAA blocklist)

Start with those, clear your own systems and then most importantly, EDUCATE others to use them and understand why they need them.

Quizo69