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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."
For those of you wondering "Who's Claria?"... They're the scum formerly known as Gator.
It's not spyware, it's online behavioral marketing!
-- Of course I'm paranoid. I'm a sysadmin.
Oh, it's dirtier than that! I read the article (shock & awe). From the article:
"The only legitimate windows that would pop up on the company's Web site would be one-question customer surveys, she said."
What's happening, according to L.L. Bean, is the user inadvertantly installs spyware from a "free" game, etc. So you're surfing the net and go to L.L. Bean. The spyware detects the connection and then on its own launches pop-up ads from rivals. L.L. Bean says they do not use pop-up ads so it's a dead giveaway. Remember: L.L. Bean has a revenue stream. They don't need outside advertising.
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!
The bitter lessons of a veteran coder: http://bitterprogrammer.blogspot.com
I worked as a grocery store cashier for quite a while, and the two main types of coupons that popped out of those machines were:
- You bought 2 of product A. Next time, if you buy 3 of product A, you'll get $0.35 off!
- (Ooh, they bought brand A of paper towels!) If you buy brand B of paper towels next time, you'll get $0.35 off!
It was quite common to have a coupon print out for a competitor. It sticks out in my mind because a lot of customers would complain about getting coupons for products they don't like instead of the ones they actually use.
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.
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).
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.