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L.L. Bean Suing Competitors For Spyware-Linked Ads
httpamphibio.us writes "According to this article on CNN, L.L. Bean is suing 'Nordstrom and three other companies it alleges used pop-up ads that appeared when some customers visited the clothier and outdoor gear retailer's Web site.' The article mentions Claria Corp, a maker of spyware . This is an interesting route to go about getting rid of spyware, attacking its source of income instead of the manufacturer."
i'm glad to hear that there are companies out there who are against acosting their customers with guerilla-advertising. i tip my hat...
Interesting...
Follow the money and go after the revenue, who woulda thunk such a plan could work!
And there are no posts to reply to.
I agree with the author that this is a good strategy twist going after those who profit from it rather than those who write spyware.
Oh yeah, nearly FP
Time for those flannel-wearing, shotgun-toting, cap-wearing L.L. Beaners to shoot 'em some cyberspace trespassers.
The coolest voice ever.
"Hell, people, we gotta come up with a new name, because most likely our company will have a bad name after this..."
"How 'bout Gator ?"
"Ohwait..."
There might have to be some reform on the internet advertising agencies' part here. Anyone know more about how they're set up?
Claria Corp, a maker of spyware
;)
if they hadnt changed their name, it would have just said "the article mentions Gator." but claria needs to have their position reiterated, eh? guess their renaming stragegy worked, since claria is not automatically associated with "bad", as gator was.
For those of you wondering "Who's Claria?"... They're the scum formerly known as Gator.
With the way the court system works, the offending companies will be long gone - merged or bankrupt and IPv7 will be in beta before this practice is found to be a violation.
Maybe my grandkids will benefit.
Isn't this almost similar to getting yourself one of those membership-style "club cards" for supermarkets where they collect data on you, then print out coupons for products competing with those you've purchased? You know, the ones that print coke coupons when they ring up a pepsi. What will this mean to THAT industry? Will Pepsi sue Coke for advertising directly to their customers? I'm not sure that'll go over very well.
:)
In other news...I run Mozilla -- so what popups?
Spammers can always crall back under their rock.
Embarrass and FINE the companies that use spammers.
Steve
This is an interesting route to go about getting rid of spyware, attacking its source of income instead of the manufacturer."
That is an understatement. The only reason most of these spywear companies exist...is to make profit. Go after their source of profit. Same with spam. Take the profit out of it, and there is no reason for it to exist, or more realistically, it simply becomes too expensive a media to use. The reason it exists now is because of how cheap it is.
Tequila: It's not just for breakfast anymore!
Just like with peer-to-peer file-sharing software, there's an interesting debate here about whether companies like Gator should be free to manufacture and distribute software that ostensibly causes damage to certain population segements. For P2P software, the damage is supposedly to the recording industry. For spyware, the damage is supposedly to the consumer and to companies whose brands are targeted by adware.
I'd hate to see the right to produce software get eroded, but on the other hand, something's gotta be done about spyware. This is an interesting approach: go after those that use the spyware (the companies that deliver ads through it) rather than those that vend the spyware. This has similarities to the recording industry going after those that use P2P to violate copyrights instead of those that vend P2P software.
But, my hunch is that displaying brand-targeting ads is a harder sell as illegal activity than distributing media you don't have rights to...
The idea that a website owner should be able to dictate what other information is on a computer screen while you are visiting their webpage is ridiculous. It would be like saying that I'm not allowed to have the llbean.com website open at the same time as the jcrew.com website... jcrew.com is unfairly competing.
I agree that spyware is a problem, but it's a problem that the user needs to deal with. LLBean has no right to tell me that I can't have Gator on my system providing me with ads for competing products, and they have no right to attempt to litigate such advertisements out of existence. I personally don't want to see those ads, and most people don't want to see them either, but I'll bet there are some people who are completely happy to have Gator infest their system and provide alternative options to LLBean.
This sort of thing makes me angry. Why don't they sue people over the content of background wallpapers that show competing products? It just doesn't make sense, they have no right to control the content of users computers and I hope they lose in court and lose big.
--
RumorsDaily
It's not spyware, it's online behavioral marketing!
-- Of course I'm paranoid. I'm a sysadmin.
Coke (tm)(c)(patent pending) has filed suit aginst Pepsi. in a recent NYPD Blue which Coke is an advertiser, Sipawitz was seen drinking a Pepsi.
I hate spyware/adware as much as anyone.
This said, I hope LL Bean loses. If I choose to let a program show me ads(or anything else) when I visit their site, that's my business, not LL Bean's.
Gator's predatory practices are a problem, and they need to be reined in; but LL Bean has no right to say that I can't be shown an ad on a machine I own.
Hey I hate adware tremendously but users have a right to have their browser to behave the way they want. I use a product called Pith Helmet that alters the way content is presented in Safari. Am I going to get sued for that, or the author? LL Bean is stepping over the line. They have no right to tell me what products I can have installed on my PC when I browse their site. If their products are better than their competitors, they shouldn't be afraid of the pop ups. It should provide a level of contrast that makes their products shine.
Damn, I hate siding with Gator on this one...
Strange women lying in ponds distributing swords is no basis for a system of government.
Anyone else hopeful that this will start a trend of companies going after those like Claria? I can't even begin to count how many times I'd had to bring a friend's computer back from the brink of uselessness because of spyware. Hopefully lawsuits like this will cause enough of a stir to end it, either through economic problems caused by the lawsuits, or outright banning through law (fingers crossed!). Are there any other high-profile suits in the works against such companies?
Popups and spam are the scourge of the internet.
I'm really sick of spyware. everytime I clear the crap from my bros computer it magically appears after a couple of weeks (I wonder what porn site he visits, he always plays dumb). I'm even sicker of IE, it's nice to see some companies actually caring about this stuff. microsoft just doesn't give a shit anymore
did you forget to take your meds?
Although I approve of anything that can stem the tide of spyware (and wear LL Bean), I do question the company's grounds for suing. In some ways Claria's popups could be likened to trespassing in an LL Bean store caring a banner for a competing retailer. Yet this analogy suggests that LL Bean (for example) owns the computer of people visiting its site.
I can envisage legitimate services that could be caught by this. For example, I can imagine a service that watches webpages and provides warnings to the user of malware links, scams, etc. Such a service would be effectively outlawed by this precedent. If LL Bean suceeds, then no service or piece of software has any right to process an LL Bean page and trigger any other actions than the ones that LL Bean approves of.
I want to get rid of spyware (although I have yet to see any on my Mac yet) but wonder about the precedent this lawsuit sets and what it means for consumers rights.
Two wrongs don't make a right, but three lefts do.
I remember when for some strange reason spammers clammed to be affileated with people they weren't.
Populare targets were AoL, Microsoft and one spammer repeatedly clammed to be a branch of an electronics company
(The spammer even sent forged e-mails clamming to be from the CEO)
It's a clever tactic to crush compeating companys. Advertise for them using Spam.
Now Microsoft could use Gator to throw up a RedHat ad on it's own website and then sue RedHat.
Or IBM could throw up an SCO ad on Suns website and sit back.
(Keep in mind people, IBM and Sun are at odds, IBM and SCO are at odds. Getting Sun and SCO at each others throats would be ideal.
Especally as Sun is pro Linux now a days and that may threaton SCO)
Unfortuantly probably a sizable chunk of companies which advertise through this spyware crap aren't even aware thats how their ads are being displayed.
And if they are, its easy enough for the spyware companies to sign up for one of the many web page banner ad services and display those instead. The banner ad companies will not be immediately aware that a particular id is not being displayed on a web page, and is instead being 'pinged' by a victims comp. When they do become aware, its a simple matter of getting a new id and distributing it to all the compromised machines through their auto updating features they all seem to have.
I.O.U One Sig.
While I applaud LL Bean for taking an interesting tact here, I personally wish for their case to be dismissed.
There are a couple very important issues here...
Gator is NOT rewritting the actual webpage, it's only providing additional "pop-ups" in seperate windows that are targeted towards their "users" browsing habits. Essentially, they can claim they are providing a service by saying "ohhh, hey there lil user-buddy, looks like you're trying to buy a parka at LL Bean, perhaps we can interest you in this other parka over at Nordstroms", there is nothing wrong with that! Google does it all the time, Amazon does it... hell name one internet portal that does not provide alternatives based upon your current browsing parameters.
While I might not care for Gator/Claria/Satan, I do respect that until laws are passed that clearly define their behavior as illegal or somehow restrict their behavior and they defy those laws/restrictions, there is very little the courts will be able to do.
The users desktop does not become the property of LL Bean when a user goes to their website. Whatever happens on the desktop in a seperate window MUST be considered the consent of the user and LL Bean's claims should be dismissed as baseless.
Any action barring the display of competitors ads would threaten to destroy the advertising models of practically every internet portal in the US. and even more threatening... allow sites such as Google and Amazon to be flooded by lawsuits.
It's a wonder no one thought of this sooner.
But the real question is if the courts will find the companies advertising or the spyware "manufacturer" at fault.
What if both are deemed illegal? If neither?
We should go after companies that hire spammers they are much easier to find. Then the spammers
http://Lenny.com
There was already a lawsuit concerning the same issue. What's different about this case?
No, but seriously, I was really pissed off at one of my friends so I installed in on his computer on purpose. You would not believe how must data the downloader intalled if I told you. It is such a terrible and invasive program that we were not on speaking terms for over a month after that.
I use Firefox you insensitive clod!
Seriously, with even that old, obsolete behemoth IE coming out with popup blocking. I suppose in a couple of years popup advertising will be obsolete and completely unprofitable.
On the other hand, I'm sure spammers and scumbags like Claria will come up with methods that are twice as annoying and twice as hard to block.
The perfect sig is a lot like silence, only louder
For me, recently testing search engine optimization of Google AdSense, it's very strange that those spammers try aggressive ad campaign even in today when everyone knows spam = bad (except for no-brainer ppl who are readily to catch virus via pr0n mail in Outlook)
Is there any success-rate proof to verify the positive effect of aggressive marketing or not?
I'm surprised that people don't see the First Amendment concerns. Be careful what you wish for. What if L.L. Bean where "taking the high road" by preventing their customers from being "accosted" with information such as L.L. Bean's use of sweatshop labor, discrimination against (fill in the blank), or sale of clothing that was dyed with alleged carcinogens? It is easy to applaud a method of speech when you also happen to dislike the (usual) message. Unfortunately, you may be creating a precedent so that method cannot be used to distribute any content.
Only Women Bleed (Sex, Sharia remix)
>This is an interesting route to go about getting
>rid of spyware, attacking its source of income
>instead of the manufacturer.
I can't understand why the anti-spam laws weren't made to work that way. It's the only way that makes sense to me. Otherwise the companies will just hop from one spammer to another, and continue sending their junk to us. Same thing for these pop-up things and spyware. The only way to make a difference is to go after the people paying the bums...
No, I'm serious. Consider this. They make software explicitly for the purpose of stealing costly visitors from websites. On the internet, that's the only "merchandise" that can be stolen. Visitors are just another, really expensive form of overhead.
But, if you don't want any of your competitor's popups appearing on your website, all you have to do is advertise with them (aka. paying your protection fee). But, doing this, you still look bad to everybody else, even though while spyware is still legal, you have no other recourse.
Doesn't that sound oddly like a protection racket to anybody else?
Isn't this the same thing as going after google for dsiplaying ads for another company when LL bean's name comes up?
Honestly, we'd probly all be rooting for google in this case.
Just a thought.
I've already had forums-admin friends talking about how they get all these posts from people asking "WHY ARE THERE POSTS IN MY ADS NOW?" when it turns out to be adware.
Then again, I suppose the "defamation" approach might apply to websites as well; maddox had a disclaimer recently that basically said "I did not get popups you morons, go download Spybot/Adaware and leave me alone."
The first spyware I ever "installed" had a little link at the bottom saying "This is a [company] offer and is not sponsored by the websites you are visiting." If the law gets involved in this scumware at all those should be mandatory.
Member of Orkut? Annoyed with spam?
I have shopped at JC Penny stores for more than 20 years. More than a third of my wardrobe has come from JC Penny during all that time.
I like the JC Penny stores.
But I dislike spyware and pop-up ads much more than I like JC Penny.
I will be shopping elsewhere until it is clear to me that JC Penny has adopted an advertising strategy that does not mess with my internet usage. JC Penny: know that in addition to what you have spent on pop-up ads, these have also just cost you a customer.
Thanks, LL Bean, for bringing this to my attention. I have never paid you much attention in the past, but I will be checking out your catalogs in the future.
It shouldn't take much of a boycott to get companies like JC Penny and Nordstrom to police their marketdroids more closely. And I wonder if something can be done with a slashdot poll wrt companies that subsidize the worst pop-ups?
Would I be right in saying that the First Amendment to the US Constitiution doesn't apply to corporations, only people.
When they came for the communists, I said "He's next door. Take him away. Goddam commies."
So what? Try applying your argument to the guy in the street with a loudspeaker at 2 a.m., to telemarketers, to someone spraypainting on your walls, to somebody inserting propaganda into school textbooks... The first amendment doesn't give people the right to do whatever they want.
How can we continue to believe in a just universe and freedom to eat crackers if we have no ale?
The basis of the suit seems to be claria "illegally trading on" LL Bean's name. But how do they know it's the LL Bean name that's triggering the pop ups? If the pop ups are triggered by keywords, wouldn't the kind of keywords on LL Bean's page tend to trigger their competitors? If that's the case, where's the basis of their suit?
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
i'm not sure how preventing pop-up ads on their website, and the use of their name/trademark on spyware has anything to do with the release of controversial information. do you have any allegations to release about ll bean? imho, there is a very, very large difference here.
This is definatly a step in the right direction. It's an approach I never thought of before. In having spyware force ads onto potential customers who go to LL Bean's website, LL Bean is losing business from people who click the ads.
I may not be wording this correctly, but in a similar view, couldn't it be said that these ads are an invasion into the business' property?
Can you stand outside the door to KB Toys and hand out ads that say go to Toys R Us instead?
So when do we attack the big companies and their overpaid CEO's then?
I have an LL Bean shoulder bag that i use at school. I go to an IB school, it similar to AP, but internationally recognized. I manage to get by with 2 notebooks, pens/markers and my calculator and a book/novel in my bag, and when i need to i go to my locker and *gasp* carry a book. Its a helluva lot easier on the back to pack smartly. Whats even worst than the huge backpacks are the rolling ones. No wonder american kids are so fat, they're too lazy to carry their own books. I cant stand the freshmen who dont realize they dont have to; have a notbook and binder for every class and carry those and every book at once in a rolling piece of luggage. I've tripped over enough that i wish someone would get seriously injured so they could be banned. I have a week of high school left, and i'm gonna miss kicking those down the stairs...
"Sic Semper Tyrannosaurus Rex."
That's going a little over the top. The lawsuit is about protecting their trademark. They are claiming that the ads are triggered by the phrase "LL Bean" which is in fact a trademark. And they are legally obligated to protect that trademark, or they lose it. And then any company can legally make clothes and put "LL Bean" on them.
The First Ammendment is not at issue here. Ever wonder why so many ads say "the next leading brand" and show a picture of a container similar to, but not identical to the brand they're referring to? It's because they're not allowed to use that brand's name in their ads. And in places where it is used, there's always a disclaimer that says "Product $foo is a trademark of company $bar".
It's about using a trademark in advertising and not acknowledging it. That's what LL Bean cares about. The spyware is a side issue.
That having been said, I don't think they stand a chance. The spyware will simply be modified to instead of look for "LL Bean" look for something like 'Outdoor clothing" and "Portland, Maine". Neither of which are trademarkable. And then LL Bean is SOL. I predict nothing useful will come of this.
There is no sig, there is only Zuul.
Hmm.. I've never been infected with spyware or adware, and I'm just a little bit astonished to find that well known corporations such as Nordstroms utilize these types of tools. I would love to have a list of companies using this type of stuff so I could choose to spend money elsewhere. If such a list does not already exist, someone should definitely create one.
It may take a while for LL Bean to see any actual money out of it, but that doesn't mean the lawsuit isn't a good thing for the rest of us: If LL Bean's suit doesn't get thrown out right away, Claria won't be able to sell other companies on the idea that this form of advertising is definitely legal. Corporate sorts aren't known for being big on risk generally, so this should cause a significant depreciation in revenue available to Claria.
paintball
a lot of customers would complain about getting coupons for products they don't like instead of the ones they actually use.
I'm sure you told them that all they had to do to get the coupons they wanted was buy the products they didn't like, right?
paintball
You have a point there, but thats not the case in this situation. The argument L.L. Bean is trying to make is that Gator (I refuse to call it Gloria Corp) setup their pop-up program so that their competitor's advertisement would show up at their site.
Thats like saying, 'Welcome to L.L. Bean where you can fine products and clothes, but be sure to look at Gap's new shipment of jeans. Oh and J.C. Penney has a sale this week, you should take a look. Oh and since you're searching for shirts and ties, Nordstrom just announced a new line of this month check it out. Oh and enjoy your stay at L.L. Bean's website.'
Thats not true either. You can speak publicly about other brands so long as it is not or cannot be called libel. Using that brand name for profit, commercial use, or personal use is not your right, but talking about it in a public forum is. I can say "CNN has xxx viewers" in my ABC advertisement, as long as it is a correct fact, and i am not using it the name CNN to endorse or sell my product.
First:
If a person visited "LLBean.com" and had advertising pop up, it would bge reasonable for them to conclude that LL Bean caused the advertising to pop up, since the site is llbean.com (trademarked) and LLBean is on the website.
If a competitor's coupon comes out of the receipt printer when you buy a product, it would not be a reasonable conclusion that the company which made the product caused the coupon to print out. As you can see, with the web pop-ups, there's damage done to the trademark (I get pissed that LL Bean is sending me popup ads when they're not), whereas with the coupons, there is no damage.
Second:
With the web popups, the trigger is LLBean.com - a trademark. With the coupons, the trigger is the UPC code, which is not trademarked.
paintball
In my nieve days, I actually used my parents credit card to purchase the "full BonziBuddy." I was still 15 and on AOL dialup back then...
:P
(posted anonymously for a reason)
Advertisements and political statements are not the same thing. What you're talking about would be more appropriate if this was "LL Bean gets pissed off that Google searches on LL Bean are returning competitors".
Member of Orkut? Annoyed with spam?
Bean isn't suing to own your screen. Bean is suing companies that use Bean's name for profit -- their own. Bean's competitor's have contracted with Gator to make Bean's name result in a competitor's site appearing. It isn't the fact that the customer is looking at a parka that makes Bean's competitor's popup; it's the fact that Bean's trademarked name/website was used. To me this smells of pure trademark infringement.
We already agree that cybersquatting is illegal. If I bought the attwireless.com domain and made it redirect to cingular.com, I'd get my ass sued off and rightly so. But what Bean's competitor's are doing through Gator -- does this amount to the same thing? That is the question, and one might well be persuaded the answer is "yes".
Not only is the First Amendment of the United States Constitution probably not applicable in this context to corporations, but it's certainly not applicable outside the United States. Further, as noted below, freedom of speech doesn't mean "freedom to do anything you damn please". The oft-mentioned statement about not yelling "fire" in a crowded theatre (unless applicable to the situation) would apply in this case, in that doing harm purely for some form of personal (or corporate) gain can't be hidden under the first amendment rights cloak.
So do I. It's called "Claria", so there's no reason to call it Gloria. :)
I meta-mod all positive moderation Unfair, because it's abuse of the system.
About 6 months ago the same thing happened between my company and a competitor. The competitor used the GAIN (Gator) network to get their banner in front of the page when clients were ready to apply for our services. Since the owner of the company I work for happened to be a lawyer he got on the phone with the CEO of the competing company and threatened to start a lawsuit. The competitor backed down immediately and abandoned the GAIN project completely. I don't know what will happen in this scenario but it will be interesting to see what legal grounds they will use.
What if I have software installed that brings up a window when I visit a website to buy a product, and the window has links to other websites where I can buy the same product for less?
Hrm, I better go patent that.
paintball
I'm surprised that people don't see the First Amendment concerns. Be careful what you wish for. What if L.L. Bean where "taking the high road" by preventing their customers from being "accosted" with information such as L.L. Bean's use of sweatshop labor...
This is not a First Amendment issue. If the situation were that surfers were voluntarily using a popup-generating program (remember www.thirdvoice.com? (thirdvoice wiki) then it would be, but this situation is different: Surfers who did not authorize the placement of the spyware software on their PCs are being presented with Nordstrom's advertising.
Nordstrom would have the right to bitch about LL Bean's operations in a voluntary medium, but Nordstrom has no First Amendment rights in a medium that entails the unauthorized installation of spyware any more than I have the right to come into your home with a bullhorn and lecture you about the evils of the bush administration. If the allegation of Nordstrom's paying money to a spyware popup-vendor is true, then a reasonable person could argue that Nordstrom has engaged in computer trespass or other illegal behaviour, and it would certainly have no First Amendment rights to do that.
I don't remember where, but I heard that a corporation has all rights granted to it as an individual. Wait, it's on TV right now! Hah what luck (daily show repeat). Ok it was a court.
Thats how I understand it. I am not a lawyer though, so...
-- Lincoln to (Col.) William F. Elkins, Nov. 21, 1864.
BytesTemplar.com
When I visit Google's site, and google serves me ads, my natural conclusion is that google is serving me ads.
If I go to LL Bean's site, and I get ads, my conclusion is that LL Bean is serving me ads. That's the damage to LL Bean's trademark.
paintball
Doesn't work quite that way. If that were the case, then a person could claim they are speaking for themselves and not a corporation (when obviously they aren't). Likewise, if a corporation had free speech but people didn't, then everyone would form their own little company. It's difficult to grant a different set of rights to corporations and people.
They aren't claiming that you can't replace their ads with those of competitiors. They are claiming that using their trademarked name as a trigger (and presumably selling it to make a profit) is trademark infringement.
"Using our trademarked name as a trigger to which you want to serve your ads causes customer confusion and crosses the line into trademark infringement."
I agree with LL Bean. Claira Corp (aka Gator) is clearly making a profit from and diluting the LL Bean name.
I happen to live in the same town as L.L. Bean, Freeport, Maine, United States. Here, we ahve two very strange laws: "Hand guns must be brought to all churches, in the case of a Native American (Indian) attack", and "The purchase of mercury thermonitors is prohibited". You would think there would be a law agaisnt being jerks and recently laying off alot of their employees...
From 5 more min of google searching it looks like it only applies to the 14th amendment.
Santa Clara County v. Southern Pacific Railroad Company:
"The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws."
In the specific case of the First Amendment, read about the Kasky vs. Nike case, where a Kasky used a California law to sue Nike for allegedly false statements about sweatshops. Nike tried to have the case dismissed in a CA court as violating its First Amendment rights, i.e. they claimed the First Amendment give it the right to lie, while at the same time not admitting they lied. The CA court disagreed, and ruled the statements in question (a letter from a Nike executive to press) were "commercial speech" and not subject to the same level of protection as First Amendment protected speech. Nike appealed to the US Supreme Court, which at first accepted to hear the case, then later reversed itself and punted it back to the CA Supreme Court to first decide on whether Nike did in fact lie or not. Thus, the question of whether corporations have full First Amendment rights has not yet been definitely settled.
Whether it should or not is a value judgment. Opinions differ. I personally don't believe it should apply to non-humans, but I can see how groups like the ACLU or the EFF would be muzzled if they did not have rights (oh wait, this is happening already).
OMG you're right -- we better shut down the ENTIRE INTERNET! It could be used for HARM rather than GOOD! Thank God you pointed this out to us!
A corporation is granted many of the rights, privileges and risks that an individual possesses/face (see the current flap regarding breasts at the Superbowl, Bono's language).
Like a human, a corporation can express an opinion (advertising, positions on issues); it can secure credit, often far more than the average human; it can commit crimes and be punished for them and it can declare bankruptcy. There are differences however.
Basically, the answer to your question is both 'yes,' and 'no':yes, a corporation enjoys free speech, but it can be said to have a burden of responsibility to society in what it says and how it says it that is not quite the same as a person's. In New York City, for example, the law determines that a woman can go bare-chested anywhere a man can--practically difficult but legally acceptable behaviour--but NBC news cannot show a pair of bare breasts on Network Television for any reason even in a show on breast cancer.
If I am wrong, correct me.
To mail me, remove the 'mailno' from my email addy.
"Yeah. It smells, too..."
Well, might as well use LL Bean for my examples... HUGE Backpack... Wheeled luggage.. I personally carry something very similar to this.
"Sic Semper Tyrannosaurus Rex."
I think most of us can agree:
The method of using spyware to generate pop-up ads is dishonest and should be illegal. Content is irrelevant.
There are plenty of scarier examples of First Amendment encroachment out there (one that quickly comes to mind, Howard Stern). Save your wrath for those.
I mean really, you're going to use spyware to alert me to the wrongdoings of LL Bean should I happen upon their website? I would be so pissed about the spyware, I would probably buy more stuff (an emotional reaction, I'm sure I would return it later). You're obviously a person with moral standards, would you really want to deceive people just to alert them to deception?
The current rule is that government can only regulate truthful commercial speech if it "directly advances" an important government interest in the least restrictive method possible.
However, commercial speech cases have split the Supreme Court into several pieces. Do a search on "44 Liquormart" and "commercial speech." Thomas would give full first amendment protection to truthful commercial speech because, after all, the listener may be far more interested in the price of cigarrettes than the day's most urgent political debate.
No Inflation Taxation without Representation
This may be obvious, but the reason most advertisers don't mention their competitor is because they don't want people thinking about their competitor during the middle of the ad that they paid for. Why give them free advertising?
"Was it a millionaire who said 'Imagine No Posessions?'" -- Elvis Costello
The situation you describe is basically what lawyers are for.
There is a big difference between muzzling critics of a company who may or may not have a point about its actions, and, copyright infringement or, as L.L. Bean claims in the suit, another company's hijacking their investment in customer-relations by using spy-ware to pop-up ads for its competition whenever someone tries to visit L.L. Bean's website.
If, as L.L. bean claims in the article, its only use for pop-ups is brief questionaires to its customers, it should have the right to demand that that be the only thing that happens when you visit its website, in much the same way I am able to use my Sprint Cell phone without being forced to hear an ad for another carrier--even though the landlines that carry my call are leased from an affiliate of another cellular provider.
All things being equal, I still like their lawsuit. It's just good sense.
To mail me, remove the 'mailno' from my email addy.
"Yeah. It smells, too..."
to see how this one shakes out. This could open a whole rash of lawsuits, where people go for the wallet instead of the technology. Advertising is all about the wallet, emptying yours into theirs.
I've always thought this was the way to kill SPAM too. Sue the companies paying for it.
Professional Politicians are not the solution, they ARE the problem.
I imagine if I came up with a line of clothes called "Outdoor Clothes" that I could do something with it... at least in the United States!
If someone timed a signal to swap out a network's advertising and display their own the FCC would be up the person's butt with a hot poker.
Just becuase it's done on the internet makes no difference this should be illegal and we should have laws against it. Every country has laws concerning hijacking of others signal they also should have the same that apply to internet ad's.
Ignoring the over-the-top slippery slope argument you made, have you considered that a lot of spyware is designed to look like "updates" and other misleading Windows widgets?
Users click on this stuff thinking they're getting a windows or security update because they are being misled. That's false advertising and that's a serious problem. Do you want to do business with a company that says "hey visit our site" only to find your computer stuffed with spyware because of illegal business dealings? Maybe not you, but perhaps a non-techie you know would fall for it.
The speech argument would hold more water if we weren't already talking about:
1. Illegal activities: false advertising.
2. Speech "rights" of corporations. (commercial speech)
3. Misleading ads and software.
4. Privacy violating software couched in unreadable EULAs.
5. ActiveX installers ready to push any junk on a misconfigured browser.
Number 1 really trumps them all.
Its an illegal activity, and rightly so. Rights are limited when doing illegal things. If we write up a contract for a big herion shipment and I reneg you have no legal recourse because you knew you were doing something illegal with me.
A funny take on this was taken by RTmark who once put a $10,000 (I think) reward for the first judge to sentence a corporation to death , on the basis that if a corporation has the same rights as a living breathing human, then it ought to face the same responsibilities and peril.
I believe the brits actuall can do this with 'wind up orders'.
Excuse the Unicode crap in my posts. That's an apostrophe, and slashdot is busted.
"First they came for the spyware companies, but I didn't say anything, because I didn't run spyware (that I knew of)..."
Yes, my only tool is a hammer. And you're starting to look like a nail.
Two words: Arthur Andersen.
That said, this is Gator/Claria malware, almost no one installs it willingly and knowingly, and certainly no one agreed to get other ads when viewing the L.L. Bean page.
One line blog. I hear that they're called Twitters now.
Did they really use L.L. Bean's trademark, or did they just detect "www.llbean.com"? If it was the domain name, can I be sued for trademark violation if I add www.llbean.com to a list of places to be dropped at the firewall? If I toss www.llbean.com into hosts, directing it to 127.0.0.1 and the Bozo the Clown page on my own server, can I be sued?
One line blog. I hear that they're called Twitters now.
holy shit, somebody on slashdot who has the testicular fortitude to admit to being wrong? welcome to my friends list
Aagh, another repeat? It was repeats, what, 2 weeks ago? And this week again? Boo-earns!
Synergy is your friend
Wow, what a remarkable quote.. describes today to a tee.
Actually you were right the first time. Corporations do have some "personal" rights enshrined in the Constitution, including (to a certain extent) the freedom of speech. The court takes it different ways when deciding what rights they do and don't have. For example, they've found that the "privileges and immunities" clause of the 14th amendment does apply to corporations, but the "privileges and immunities" clause of article IV does not.
The issue here, as explained in the article, is trademark ("TM") infringement. To get TM infringement, one element is that there must be use in commerce. Spyware of this sort operates, as I understand, by having a list of keywords against which, for example, user queries can be compared. In WhenU's case, it had a list which included the TMs of it's competitors (it's clients' competitors, actually).
One court, in N.Y., granted an injunction holding that WhenU used it's competitor's TMs in commerce in two ways - one, in the file against which it compared keywords and, second, in that WhenU's window popped up when the competitor's webpage did (the court thought WhenU played off of the competitor, I think). Personally, I don't get the court's second point at all. WhenU did nothing to get any competitor's website to come up. An analogy might be if a business erected a sign near it's competitor's location - I am not familiar with any caselaw on this point, but I would imagine it wouldn't be TM infringement.
Another court, in Virginia, found the opposite, that inclusion of the TM in the keyword file was not "use in commerce".
A third jurisdiction, Michigan, sided with Vir. in the third WhenU case.
But this case is in Maine, so I guess it could go either way.
Most people who have spyware on their machines actively don't want it. This is why spyware is rapidly becoming the worst tech support problem out there.
If you think that it is OK to destabilize millions of computers and disrupt businesses worldwide to deliver unwanted ads, then proceed as you already are. If you think that those things are bad, then perhaps you'll want to do what I just did, decide to boycott those stores, and write them to let them know that you are boycotting them and will encourage friends and family to do likewise.
Yes and no. The problem with the original Bill of Rights was that it was viewed as a Federal document. Until much later on, the first 10 amendments weren't actually applied as protections from individual state governments.
In a bit of what I see as a reach (albeit a good one) the Court went back and applied the Bill of Rights to states one by one vis a vis the 14th amendment clause that you quoted. I think what that case is referring to is the beginning of that process for corporations.
Also, if you go down that list in the first link of the google search you posted, it lists different amendments, including the 1st, being extended to corporations in some capacity. That doesn't mean they're the same thing as people under the law, but that they do gain some protection from the amendments incorporated so far.
Claria is spyware.
I'm still waiting for the lawsuit.
-bZj
.sig
Three words --
;-)
Santa Claus Operations
Not really. The end-user installed something that overwrote or supplemented content on a website. In most of these cases, it was probably not their intention to recieve popups, but it by their own doing that they accepted the EULAs or clicked "Okay" on the ActiveX boxes.
If precedent gets set, though, what if another user truly wants a site-correlating popup service... something like a "human rights warning" or a more automated "RIAA radar" or something. The creators of that software could be sued on the same grounds. The end-user installed a something that overwrote or supplemented the content on a website.
Information wants to be free.
Entertainment wants to be paid.
You just want to be cheap.
I don't see the difference between spyware (adware) and a virus. Is this renaming of malware just successful PR by Gator & friends?
Ed Craig "Who cares what you think?" George W. Bush, 4th of July 2001
So Lincoln sez boo hoo. Too bad, pad're. Aggrandizment of corporate power was a necessary consequence of the "War of Northron Aggression". That's what the north-east states were fighting for !
I have notified Nordstrom's (where I shop a little and my wife shops somewhat often) that my wife and I will be boycotting them for one year, and it will become permanent if they do not make a public apology and publicly distance themselves from spyware-based advertising.
I also went to Claria.com, filled out an ad rate request form with a fake ID, and used the comment portion to let them know that I have notified Nordstrom's of my 1 year boycott and specifically attributed it to them using Claria. Of course, Nordstrom's apology won't be likely, because if they make an apology before the lawsuit is settled, L.L. Bean may be able to turn it against them.
But a boy can dream...
Start a happiness pandemic
The broader issue here is: who is responsible for what?
LLBean really should not be acting as if it owns the content of your desktop when you visit their site, because it doesn't. However, it is responsible for defending its trademark in a new environment where the applicability of previous legal precedents may be unclear. If we say that LLBean shouldn't defend its trademark in this way, then we must also agree that these tactics of its competitors should not jeopardize the trademark.
And who is responsible for the spyware? Not Gator, because everyone knows that manufacturers of software are not responsible for anything, whether the user has to acknowledge this by clicking "Agree" on a EULA or not. And for the same reason, Microsoft is not responsible for the loose security that often facilitates the perpetration of spyware on the unwitting.
I mean, really, what software manufacturers would have us believe is that they have no responsibility for what their software does or doesn't do, perhaps with the exception of specifically advertised features. Likewise developers of free software certainly don't want any (legal) responsibility for what they produce, since most can't defend a lawsuit. [You read it here first: common ground between free software developers, Gator, and Microsoft!]
So who is responsible? Well, at the moment it must be the users who are responsible for their own desktops, as difficult as that is these days. There might also be some responsibility with the legislature (and by implication, voters, including the many who are MIA) for not passing appropriate laws to clarify the situation. But some might argue that many of the laws already passed regarding the use of computers and the internet were premature, and as a result, made the situation worse. Personally I think it's because many of them were motivated by greed and fear, with the dependable support of the ignorant.
...mercury Thermometers?
Huh, I was about to watch the daily show in 5 minutes. Thanks for the heads up :) -- Now I'll go play some half life instead.
Have you tried Linux yet?
I'm surprised that anyone could consider that ramming such unwanted trash down someones throat could even be covered by the first Amendment Especially as this usually works by hijacking the legitimate Ads that come up for a web page
To quote something i have said earlier, that i feel still applies:
The fact that theftware (I think this is a reasonable description of programs which steal my bandwidth and steal others advertising space) such as Gator *steal* (And i cant think of any other way of describing this) the advertising space, paid for by companies that are *supporting* some of the websites i view, strikes me as the most dodgy tactics imaginable, and i hope these companies go broke.
Other than the fact they call themselves Claria These days, this still applies.
Its due to the companies that are being sued that there is even a market for such patently dodgy tactics and i hope they get slapped down along with Whatever gator is called today.
NO ONE has a first amendment right to install Gator-crap on my computer by stealth.
NO ONE has the right to hijack my browsing and insert adverts.
NO ONE has the right to force me to read their advertising by stealth.
There are web sites that survive by the very slim advertising revenue produced by ads. Products like Gator (Or whatever) steal this advertising and point it at someone who has nothing to do with the site in question, which can eventually force the site to close down.
Most people who install this crap have no idea what they are doing, and would probably not choose to install this stuff for many of the same reasons most people choose not to install Rootkits.
"The best way to explain this in bricks & mortar terms is your competition coming in and slapping their ads on or around your store. Especially without your permission!"
Bollocks it is. The spyware hasn't been installed on the LL bean web site, their web site doesn't have their competitors adverts installed on it.
The closest thing would be someone following you around handing you pamphlets pointing out their competitors nearby stores when you get near an LL bean store. A similar and perfectly legal practice which happens in real life is people standing outside a store and handing out pamphlets pointing out the competition.
The issue in this specific case is whether the competition are allowed to make use of their trademark in this way without their permission.
Government of the people, by corporate executives, for corporate profits.
Sort of. A year ago Nike found out about that. See http://news.bbc.co.uk/2/hi/americas/3023950.stm and http://www.capmag.com/article.asp?ID=2569
Nike found out about that in the US, corporations have different standards for frea speach than people do. A California court said that "commercial speech" designed to promote its products is not protected speech. The US Supreme court declined to hear an appeal. See http://news.bbc.co.uk/2/hi/americas/3023950.stm and http://www.capmag.com/article.asp?ID=2569
I like LL Bean and think they do well as a company trying to do the right things by their customers. And they should protect their trademark. But they, (and other companies, ya hear me?!) don't own my computer. If I want to have it show competitor's ads they don't have a right to tell me otherwise. Nothing good can come from this lawsuit, same as most others like it. They're throwing good money after bad.
LL Bean should offer their customers information about these companies, and show them the simple methods needed to keep this crap off their computers. They should take their dollars and support AdAware or similar software.
With all the investments they make for a quality customer experience, helping them shop safely online would be a welcome service.
Downloading software is kinda like fishin', anyway, you shouldn't consume everything you draw in. But if you like eating chub, that's your own business.
if "The defendant Corporations are persons", why do persons that terminate a corporation not get charged with murder ? :-)
A corporation *never was*, and *never will be* a real person. At least, not in my book.
U-Haul lost its case against WhenU, as reported last Sept. on Slashdot. The main difference is that U-Haul went after the company providing the service, rather than the advertisers themselves. I'd give you a link to the original Slashdot story, but it took me too long to find it the first time, when I was submitting this story way before this version of it was posted. I guess I should have posted it under YRO instead of 'The Internet'.
Here's another version of the story, which was online long before the CNN version. It also mentions that Claria Corp. was formerly known as Gator, which CNN seemed to miss.
666-607: 6th floor apartment of the beast
how about making a widget that tracks down the companies that allow spammers and popups to be used as "advertising methods" and boycott them.
..
a name them and shame them sort of thing.
these companies allow spammers.
these companies use popups.
these companies use spyware.
to advertise there products.
if enough companies got the point that business
was not welcome from companies that used such
evil and tasteless tactics
they'd eventually get the point, and stop
using them don't you think?
You are such a fscking moron. Since when is it "constitutional" for a corperation (not a citizen) to walk into boscovs and screw a big JCPenneys logo to the wall?
KenWooD
A funny take on this was taken by RTmark who once put a $10,000 (I think) reward for the first judge to sentence a corporation to death , on the basis that if a corporation has the same rights as a living breathing human, then it ought to face the same responsibilities and peril.
I believe the brits actuall can do this with 'wind up orders'.
Actually, I think it would be funnier if they just had to throw the company in jail. The whole company every employeee not just the board of directors. It would go right along with that government viewing everyone as a criminal.
As an example, the government could say that one of the car companies was responsible for 10,000 deaths from shoddy work. All 15,000-20,000 employees in the car company would be arrested and held until after the 10,000 different trails where finished. They'd all be charged with neg. manslaughter.
Life would sure be different if we could be arrested if we were arressted/punished for our bosses crimes.
"Assault victim beaten over head with frying pan dies in Portland Maine hospital, boyfriend charged with murder...SHOP AT NORDSTROM HOUSEWARES - NON-STICK PANS ON SALE NOW!"
Now that is wonderful product placement!
When the people fear their government, there is tyranny; when the government fears the people, there is liberty.
Similarly, organizations like Consumer Reports will talk about specific companies/products without violating trademark.
The reason companies normally don't mention their competitors is because they want everyone to remember their own brand name, not their competitors.
I agree that the spyware is a different issue than the trademark stuff. And that's why I think LL Bean will lose the case. Note that the article doesn't say they sued Claria, just the companies advertising through Claria.
I'm sure LL Bean doesn't like it that software may tell people who visit their site about competitors sites, or customer complaints, or anything else - but that doesn't make the software illegal, either. So their only argument is trademark infringement. Since nobody is, so far as I know, trying to pretend to *be* LL Bean, I don't think they'll win.
The spyware issue is seperate. To judge the merits of the case, take spyware out of the picture, just to pretend. Hypothethically, lets say you go to www.compareproducts.com, and find that site is set up to tell you about products - and competing products as well. And you enter LL Bean in their search engine, and it gives you info on them, their products, and their competitors. Further, lets assume that the compareproducts.com website is a sponsored site, and that Nordstrom, J.C. Penney, Atkins and Gevalia (the companies mentioend in the lawsuit) are paying to be listed.
Would there be anything wrong with that? If companies are willing to pay to advertise that way, and customers are willing to go to the site and use it to do shopping comparisons, is there a problem? I don't think so. In fact, I suspect that if we looked around, we would find examples of sites that already do this. (Froogle.com? I don't use them, but I think they do something like that.)
Simlarly, if Claria actually wrote software that people *wanted*, if people were installing the software because they knew the software would *help* them, then I would consider that acceptable. It's essentially the same as the website example above, except that people have choosen to use a piece of software to help them when they shop online. I would have no qualms about that, either.
Spyware, however, adds a twist. Most people don't want it there. They don't want extra ads, popups, etc. The spyware guys don't care what people want. They aren't writing their software for the people who will use it - they have to sneak it onto their machine somehow, or people *wouldn't* use it. They write their software for their own purposes - and in the case of Claria, that means showing pop up ads and such. That I do have a problem with - but it has nothing to do with Trademark or this lawsuit.
Since political speech is traditionally the most protected of all forms of speech in first amendment case law, that shouldn't be a problem.
Now before I get modded down, I be to remind whoever might read this that what I am saying is FACT. - bogaboga
If this case fails, its only a matter of time before companies use this tactic to smear a company.
Imagine a campaign for porn sites, paid for by your competitor, and popping up with raunchy advertisements off of your home page.
That would make mom and dad happy to shop there.
Not if you were selling clothes. MS has a trademark on "Windows", but it doesn't keep Home Depot from selling windows. Apple has a trademark on "Apple" which would stop another company from selling a computer named Apple, but it doesn't keep other companies from also using the name, as long as they aren't in a similar/competing business. For instance, Apple Records.
...if the best way to beat the obnoxious ubiquitousness of this sort of odious ad-related spyware was through an overzealous enforcement of copyright / trademark infringement? In a "When Titans Clash" sort of way; Godzilla vs. King Kong; corporate greed vs. corporate protectionism.
;-)
I mean: consumer complaints? Meh, who cares.
Lawsuits up the wazoo? Hello!
Who knows? Maybe even the DMCA has a silver lining.
Like the man sang: "Always look on the bright side of life..."
Popups are annoying, and I disable them every chance I get. But they do at least help pay for content, and they're actually less intrusive than TV or radio advertising, which (unless you're watching on TiVo or VCR) you can't just avoid with a single click.
What these companies are accused of doing is much worse than regular popups: They were allegedly using Gator-like scumware to hijack users' browsers, showing popup ads that weren't placed there by the sites the users were visiting. Arguably, it's even worse than spam, because it permanently infects a user's machine.
I'm not entirely sure, as I only heard rumors about this (and over a year ago at that), but I think X10 may have been in the same situation LLBean is in right now: that those ads were not posted by X10's marketing department, but by that of a reseller of theirs. Furthermore, that the main reason they're gone now is because X10 realized that they were quickly becoming the new most hated company on the net, and made the resellers pull the ads.
Of course, I could be completely wrong on this.
Media that can be recorded and distributed can be recorded and distributed.
-kfg
Historically, this has been done -- proxy punishment up to and including the death penalty, imposed on one's peasants rather than one's noble self. Someone who cares can probably serve up specific examples.
~REZ~ #43301. Who'd fake being me anyway?
That hardly seems fair; there's no way that every single employee would be responsible. Hell, in any given company, the vast majority of employees don't even know everything that's going on. They just do their bit and go home.
You would apparently have the canteen staff and the receptionists thrown in jail because one high-level manager hushed up a report and so caused some deaths...
It's official. Most of you are morons.
A corporation is also completely owned by its stockholders. So why does that not make it a form of slavery?
The ruling that we are talking about was a big step in making corporations more important in this country then its citizens.
He said they have not done business with Claria and they have no idea why L.L. Bean is making this claim, other than to try to add weight to existing suits L.L. Bean has going against Claria. He said Nordstrom's is very anti-spyware.
He also suggested that Nordstrom's may end up suing L.L. Bean for slander.
Just FYI.
Start a happiness pandemic
Since corporations are ultimately owned and operated by people, you would have to limit the first amendment rights of said individuals to make your assertion true.
Fair? It was supposed to be funny. It's like me doing something wrong and then all of my relatives and ten generations of descendants being punished. It has to be funny. It's like that whole Adam and Eve thing. 2 people do something wrong the rest of humanity is punished forever more. It has to be funny. Remember humor and laughter is one of the defense mechainisms humanity has developed to deal with horribly wrong things.