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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...
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?
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...
Unfortunately, GAIN has tied their right to be a program that modifies the content of an Internet page to basically the way that pop-up blockers do the same. It's hard to write a law that bans one without catching the other...
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.
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.
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.
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
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)
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?
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?
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?
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.'
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
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.
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.
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.
-- 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
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).
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..."
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..."
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.
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.
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.
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.
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.
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