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Spyware Company Sues Utah Over Anti-Spyware Law
cgibby98 writes "An earlier Slashdot article talks about how web businesses oppose Utah's new spyware law. A story in Tuesday's Deseret Morning News says that WhenU.com filed suit Monday against the state, its governor, and attorney general, trying to keep the law from going into effect next month. The lawsuit claims the law violates WhenU's constitutionally-protected right to advertise."
"WhenU's software, one of the apparent targets of the act, is installed only with user consent, and does not invade the privacy of computer users..."
I'm not familiar with WhenU's software, but I find this hard to believe. Can this statement be defined with the same style of deceit that seems to encompass adware companies? Anyone who knows of their spyware's habbit's please shed some light on this.
The law also curbs pop-up advertising on the Internet and calls for penalties of $10,000 per violation.
That's quite significant for a pop-up, don't you think? I mean I'm 100% against that kind of advertising, but $10000 seems incredibly steep.
Wireless News www.DailyWireless
Give me a break! Their argument is ridiculous! The "right to advertise"?! When they're using MY hard drive, MY CPU cycles, and MY bandwidth to do it?! If some brick-and-mortar company spray painted their ads on the side of my house, or hooked up the lighting for their billboard to my electrical socket, then surely that's not protected under the "right to advertise"... especially if they are using ads that are "stolen" from their competitors...
I'm not saying that this is a great law, especially since it's basically one advertiser fighting against another advertiser, but still, enough with the constitutional rhetoric already, what we're talking about is people hijacking personal property, be it my computer or some other company's advertisements! Just give me a choice (even if it's buried in the EULA) and get on with it! Like it's that hard to throw in a window saying "Do you want to install this?"
then I think they are playing with fire, because it can easily be alleged that they are violating other constitutional rights such as rights to privacy and protection from unreasonable search.
You see, if they want to make bogus charges, we can too.
P.S. IANACLBIDSAAHELN
(I am not a constitutional lawyer but i did stay at a Holiday Express Last Night)
-- You see, there would be these conclusions that you could jump to
couldn't this be a positive use of DMCA?
all our specific keystrokes, mouse clicks,
mouse movements, web clicks, etc comprise
a copyrightable, and therefor copyrighted,
body of work...so any sw that captures these,
and sends them to a third party, (which is what
spyware does), is clearly breaking the DMCA.
any lawyers out there that can comment on this?
Wouldn't a NY company putting advertising on a Utah PC be considered interestate commerce and thus not regulated by the states in accordance with the Constitution? I'm inclined think so but I'm certainly no expert on the matter. Would any of the geek lawyers care to comment.
If your wondering, no I have no love for any spy/malware company. I'm just seeking clarification.
There is nothing inherently safe about liberty. That's why so many people died protecting it.
I for one can say that spyware companies have cost our company at least 200+ hours of my time of un-installing them and running ad-aware, which still doesn't even get rid of all of them. We ran ad-aware on a computer the other day and found 560 something pieces of spyware, now how come we cannot sue these companies for costing others time and money? We do the same thing if somebody defaces property, we make them pay for it so we don't have to waste our time and money on it. I am just waiting for someone to sue these companies, my bosses are both lawyers and I will be pressing them to do the same if someone else does it to show that it can be done!
If carrots got you drunk, rabbits would be fucked up. - Comedian Mitch Hedberg R.I.P. 03/30/68-2/24/05
This is exactly right though. People have seen what happens when you make up fantastic spurious legal cases the way SCO did.
Your share prices rise.
You make money.
This is about making money... plain and simple. Who cares if you win or lose. You still win, thanks to the clever boys and girls on Wall Street.
"Thats right buddy, the large print giveth, and the small print taketh away."
Once the rights are back in the hands of the consumer, this will never be a problem. Oh, and I wish someone would excercise their LEGAL right to install a counter-measure in the same way that this scumware is installed.
My guess is that will only happend after someone will insert a major virus/ddos software under "protection" of EULA and then sue Anti-Virus companies to prevent them to adding the virus to their definitions.
RelevantElephants: A Somatic WebComic...
I fully support this case, because I'm sure WhenU will lose, and at the same time the courts opinion will be useful in further clarifying the nature of the rights in this area. Litigation like this is actually useful: as opposed to other places (like the UK, where I am) that trundle on for years with uncertainty about how things work.
Would you allow me to install some software on your phone line that would interject with advertisements from time to time?
Funny you should mention that. By coincidence, I just got off the phone not two minutes ago with a Telus Mobility customer service rep. You see, this afternoon I got a text message advertisement.
This was extremely disruptive! Here I'm in a meeting, and my bloody phone starts ringing as if our server was down, and it turned out to be a stupid ad.
I was quite angry at this, being offended that I'm paying Telus to advertise to me, so I called them. What they told me? The only way to not receive the ads is to block ALL text messaging.
This infuriates me some more. So now I'm back to the old-fashioned: write a snail-mail letter (which I'll do) complaining and indicating that they'll lose me as a customer if they continue this bullshit.
If I keep getting ads, I'm switching to Fido.
You can accomplish anything you set your mind to. The impossible just takes a little longer.
You, sir (or in the unlikely event that this is the case, madam), are most enlightened.
The problem is that politicians rely on complex laws to keep themselves in office and reduce the power of individuals that aren't part of the ingroup. But don't break out the tin-foil hats just yet--I'm not claimin a conspiracy, just good old-fashioned capitolism. That's right, people striving to make their business thrive. In this case, it's the gov't.
This misses the deeper issue though. Why in the world does this company (or any one else) feel that advertising is a constitutional "right". I am guessing that this is another one of those sorry misinterpretations of "freedom to speech" that we hear about. The sad truth is that freedom of speech was never meant to be guaranteed for companies, just individuals. There is a huge difference between my claims and the claims of any corporate entity.
If advertising was truly free speech, then the laws about truth in advertising wouldn't fly (after all, making us tell the truth restricts our ability to promote our product). As it is, we have two essentially conflicting ideas.
The real problem is that, as you said, we have far too many laws that only a few people know anything about.
One solution would be to make congressmen have no salary, and then they would have to work for a living. This would mean that they wouldn't have time to sit around and think of new laws. Any country with professional politicians is certain to have trouble.
"We don't know what we are doing, but we are doing it very carefully,..." Wherry, R.J. Personnel Psychology (1995)
I think it would be much simpler to push it back to around 1975 or so - the act of writing a piece of software makes the author responsible for it in all incarnations. If someone finds a security hole, the author is at least 50% responsible. Any losses the user incurs are at least 50% the responsibility of the author.
More than 50% liability is triggered by difficulty in uninstalling the program or any sort of legalese EULA that implies (incorrectly) that there is any limitation on the liability of the author.
Why only 50%? Because the user has to bear some of the risk no matter what.
This would inject some badly needed sanity into the OS and office suite world. It would also make virtually all software a lot more user-friendly by eliminating the notion that you can build a defective product, distribute it and claim that you aren't responsible.
There is NOTHING in the constitution about a 'right to advertise'. There is a right to free speech (basically free opinion and expression) but this does not extend in any way to advertising. Even the freedom of speech does not guarantee a platform for that speech--you may have to provide your own. That is to say, you're free to your opinion, free to voice it if you can provide the means, but that does not extend to these ridiculous interpretations that keep popping up. Any businesses in Utah that join this suit, I suggest everyone notify them that we will no longer be using their services.
AFAIK, constitutional rights apply to _people_, not corporate entities... so forgive me if I'm a little confused about this, but exactly which constitutional ammendment are they referring to here?
File under 'M' for 'Manic ranting'
Corporations cannot use the 'bill of rights' since corporations have never explicitly been given any 'rights'. There have been judgements that have caused mass delusions within the legal profession that corporations have 'rights', but no changes have been made to the constitution to grant same 'rights' to corporations as those of citizens.
Corporations should-not/cannot be given the same rights as citizens. Corporations cannot be held to equal responsibilities as citizens, nor can be punished to equal measurements to citizens. Corporations have much more resources available to utilize the legal and/or government systems to their own purposes. The people responsible for running of corporations are not held responsible nor punished as harshly when found guilty.
FYI, whenu's product is adware. You don't get it unless you install a free piece of software that it's bundled with.
Despite this crowd's general distaste for popups, users are installing *free* software and the makers of such software monetize it by revenue sharing agreements with companies like WhenU or Claria.
This law is horrible, if it's not stricken down there are wide ranging reprocussions.
Ugh! So, out of curiousity, are you going to be in any way billed for that advertisement?
when you pay TV (be it cable, sattelite, UHF, whatever) you are paying for a content (movies, series, cartoons) and not for the lack of advertising.
a better analogy for spyware and TV is that:
you are watching Spiderman on HBO, and suddenly someone hijacks the signal and starts to overlaying some commercial over the movie (pop-up) or changes the movie for some other program (browser hijack)
I hope that companies like that go under ASAP, that's what they deserve.
They do. Check out Santa Clara County v. Southern Pacific Railroad Company, 1886.
And for the most part, that is a good thing, not a bad one. Sure you can't discriminate based on race, but what if I could discriminate companies based on your employees race? And they deserve most of the basic rights like protection from illegal search and seizure, right to a trial and so on.
What has been held to a higher standard is commercial speech, otherwise they could use all sorts of false and deceptive marketing. Or well, comparing with the rest of the world, perhaps I should say political speech is held to an incredibly low standard.
In the US, you can state things that in most of Europe would be considered illegal racist speech (think of is as class action libel/slander) or illegal false or deceptive political speech, like Holocaust deniers. But then again the US has never had to deal with it quite like we have.
I can't wait until someone starts claiming 9/11 didn't happen, but was all staged by the US as an excuse to attack the Arab world or some such non-sense. Once you start proclaiming that as "fact", I think you might be in for a vacation in Guantanamo Bay quite soon...
Kjella
Live today, because you never know what tomorrow brings
Shady != illegal
No,
strcpy(shady,"take advantage of the naive and innocent.");
That's a helluva way to make a living. If you think that "shady" should be OK, go tell it to the people who have lost their homes because of predatory lending practices. If you come back with all your teeth, I'll be impressed.
What happens when your 7-year-old is surfing to get the latest cheat codes for his video game, or is trying to see what's new with Spongebob Squarepants, and one of these pop-up EULAs appear? (That's an example..I'm not running down the Spongebob people or saying they do or do not pull this stunt.) Kids don't know what that is, and they're likely to simply click past it just to get to some online contest. I've asked my youngest what it means when these things show up, and he assumed that he'd be unable to get to the content he wanted unless he accepted the installation. So, the whole family should be subject to an invasion of privacy? I don't think so.
And don't *even* start with the "gee whiz, you should be looking over your kids' shoulders while they surf" nonsense. I do watch my kids surf because of this slime: even when they go directly to the sites they intend to visit, these silly "trust me, install this" messages show up. If kid-oriented content is going to be promoted and provided on the web, then that neighborhood must be kept safe for kids.
No sensible human being with argue that red light districts, crack houses, and rectories, Neverland Ranch, or halfway houses for child molesters should be located next to schools and playgrounds. Same thing. There are good arguments for the use of specialized top-level domains -- maybe this is one of them...slashdot.k12?