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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."
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.
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!
I think they may have a pretty good case because as far as I can see the law is pretty vague on this one. They probably have a great chance in a civil court though.
As to how these guys are organised? Just like the mafia only not as romantic and much more irritating.
I am government man, come from the government. The government has sent me. -- G.I.R.
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.
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.
And are you sure that they're competing products? I don't recall seeing a time where buying Coke gets you a Pepsi coupon. Maybe a Sprite coupon, which ultimately is Coca-Cola Corp. I vaguely remember hearing that most of the huge number of detegents are owned by about 5 companies.
We should go after companies that hire spammers they are much easier to find. Then the spammers
http://Lenny.com
This is essentially the same logic as that French site suing Google for letting competitors use their trademarked name as an ad keyword.
IAN(please contain your astonishment)AL, but I simply can't see why that should be infringement. I'm aware that people hate Gator but this seems like a lousy precedent to set. Certainly if L.L. Bean wins, don't pay too much in the Google IPO.
What I'm listening to now on Pandora...
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
I'm seeing the typical slashbot response of "Yay! Bring down the evil spyware spam co! Burn!!!" In reality, this is not a company against "acosting their customers with guerilla-advertising." This is a company agaist losing potential customers because they saw a Gator ad when on their way to LL Bean.
So yea, perhaps this is good, but it could set very pad precedent. What happens if LL Bean wins, then some other popup advertiser uses the precedent to sue users of The Proxomitron because it is interfering with their business?
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 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?
But the idea that a website owner can be able to dictate what other information is on a computer screen while you are visiting some other web page is a-okay? Because that's precisely what Gator (Claria) is doing. Some website owner (ie: Nordstrom) is dictating what information will be on your computer screen (ie: ads for Nordstrom) while visiting a website (www.llbean.com) It's not like Claria is doing it out of the goodness of their heart. Someone paid them to do that.
You need to think a bit harder about your argument, there. Why is it ok for Gator and Claria to do it, and not for LL Bean?
There is no sig, there is only Zuul.
That's not really a fair comparison. It's more like them sending me a catalogue in the mail, and then I invite over a representative from J. Crew to come over and hand me images and prices of their competing products. It's happening on my premises WITH MY PERMISSION (assuming that people actually agreed to have Gator on their computer). It may not be ethical, but it certainly shouldn't be illegal.
--
RumorsDaily
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?
No, actually that's not the point here.
... that is competitors encroaching "their space" by placing ads on the users desktop. Essentially, LL Bean is trying to say that they own your desktop while you view their site.
To quote the LL Bean representative:
"These advertisers are illegally poaching on L.L. Bean's trademark," Kelley said. "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."
Their greivance is about brand/trandmark infringement
While your claim about Gator/Claria "decieving" it's users is an interesting one, it is not an issue LL Bean can raise since LL Bean does not own your desktop. The decision to catagorize spyware as malware is currently making it's way through Government and we should start hearing about some decisions in the future.
Should a store be able to prevent a customer in their store from looking at a competitor's advertisement that they brought in with them? Or sue the advertised company?
How about if they recieve text messages when in one store about a sale in a competing store elsewhere in the mall?
Obviously a store can refuse business to anyone, but to say that a third party can be sued because of the actions of a random consumer while on the grounds, real or virtual, of another store is rather absurd.
Spyware needs to be dealt with, but whatever site I am viewing in my browser does not have exclusive rights to my attention or to my(nonexistant) consumer spending.
I like analagies, so here is another; picture in picture for televisions. Advertisement for McDonald's on your primary channel, so you flip through to another channel in the secondary picture, where there is an advertisement for Wendy's.
Obviously the targeted aspect makes things somewhat different, but it is still the customer that is ultimately in control of the exposure to advertising.
As long as the advertisments are not overtly deceptive then I do not see any legal issues with this technique.
But for the good of humanity, spyware makers need to be brought into control and held accountable for their viruses, because that is what most of them qualify as, EULA or no.
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".
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.
-- Lincoln to (Col.) William F. Elkins, Nov. 21, 1864.
BytesTemplar.com
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.
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"Yeah. It smells, too..."
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..."
How about this? You get your wish and Nordstrom can hire windows from Claria/Gator to pop up obscuring the view of LL Bean shoppers. Fair?
Fine then. LL Bean gets to hire people to send to Nordstrom outlet stores whose job it is to stand between certain people and the merchandise they're looking at, and telling them about all the things they can buy at LL Bean. The customers are allowed to tell the LL Bean employee to "go away", at which point the LL Bean employee must immediately stop talking and move out of the way until the customers decide to look at a different item. Then it repeats. The victims are chosen by a person outside the store, who is asking for signatures for a petition to save little puppies. This person does not mention any affiliation with Nordstrom or LL Bean, but at the very bottom of the petition in fine print is the line "You may be bothered by certain people in certain stores." Neither the document nor the petitioner gives an explanation of "bothered" or a list of "participating" stores.
If I have been able to see further than others, it is because I bought a pair of binoculars.
He actually has a point. Look at this this way: Suppose I the user actually *wanted* to see a particular popup (maybe a toolbar or something) when visiting company abc's website. So I of my own free volition download these products and am quite content having them transparently detect when i am at abc's website and appearing. Now all of a sudden abc sue's the code writers xyz for infringing their 'name'. Code writer xyz should have been in his legal to write that code, as it is meant to run on knowingly on a consumers personal computer.
The main difference between that analogy and this lawsuit is that L.L. Bean claims the spyware was unwillingly on the computers computer, and masquerading as advertisements from them. the crux here seems to be whether or not the user realizes the advertisements are from a different source, and its a point that needs to be made clear in the lawsuit, lest this case potentially be used later as precedence to sue some innocent FOSS developer making a viewbar for google.
Then again, IANAL.
I like analagies, so here is another; picture in picture for televisions. Advertisement for McDonald's on your primary channel, so you flip through to another channel in the secondary picture, where there is an advertisement for Wendy's.
And how would you feel about a device which somehow exploited a flaw in your set-top box and noticed when you were watching a McDonald's ad and opened up a picture-in-picture window to display a Wendy's ad?
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
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.
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.
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.
Most companies , given the chance, would love it if spam/popups/whatever worked and didnt irritate the living shit out folks. *however* that does NOT mean the same-said company knows full well it pisses off customers and therefore won't go near it with a ten foot pole.
:-)
I consider myself to be quite an 'anti-corporate' person, in the sense that I think we need to drastically reign in the privilege and influence of corporations in modern society. And the legal anthropomorphization of companies has gone too far, even - and this is the point of my post - to the point where even fellow anti-corporates do it.
'Love'? 'Know'? Come on people this is fuzzy thinking at best. I know it's sometimes just in the interest of simplification, but it leads to over-simplification.
Remember SCO and the antics of its leadership: doesn't make any sense if you think about some mythical 'wants' and 'hates' of SCO itself, since it sounds like some schizophrenic suicidal psychopath. Yet, as soon as you think of certain members of the board, who might want to cash out and let the company sink then it makes sense again.
The same goes with 'good' companies to some extent (i.e. the actions of L.L. Bean now), however that's always when some 'clear-thinking' individual shows up and points out that the company is 'only interested in profit', as if it's patently impossible that anyone in the management might have morals or standards. Or worse there's the implication that -- since the company is just this lumbering raving profit-hungry beast -- it will only ever do something good if it's prodded with the profit stick.
People: companies are abstract *things*... led by people. It's very rarely one single person, and if it is, they are very rarely without some kind of oversight. The only thing the company itself represents behaviorwise is sometimes a certain 'culture' that is common there. But never forget: that culture is a product of the people and their history in the company not some magical aura the permeates the company, which is why if you let enough people go, or change the leadership drastically and/or at many levels the company can transform itself (see IBM -> IBM, or SCO -> SCO, or... anyone remember the original EA? when the 'A' meant something?).
Sorry for the rant. Frankly the parent it far from being the worst at this, but I just wanted to get that off my chest
-chris
San Francisco values: compassion, tolerance, respect, intelligence
"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.
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.