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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.
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?
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...
It's not spyware, it's online behavioral marketing!
-- Of course I'm paranoid. I'm a sysadmin.
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.
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?
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.
Nope, it's not the same.
Why? Because Google respects trademarks and if you do not want ads to appear with your trademark, all you have to do is let them know.
Many companies take advantage of this fact, do a search for New York Times... notice any advertisements? OK occassionaly there are some because creating an advertisement for Google automatically puts it on the search engine, but if any show up, they will be gone the next morning when a Google editor gets a chance to look at it. The exact same holds true for a search of L. Bean (do a search, the one adverstisement is their own, they have a monopoly on advertising with their search term on Google.)
Google forbids advertisers bidding on a search term if you write them a letter formerly requesting as much.
The question that comes up is... should companies with trademarks have to proactively fight to have ads removed on Google associated with their trademarks, or should they request being added to a whitelist first? Many companies do not mind advertising on Google with their trademarks ie: Microsoft... while others forbid it, ie: eBay, New York Times, L Bean.
The funny thing about eBay is that although they forbid advertising using such terms as e-Bay, eBay, e bay, ebaye (or anything similar) they (eBay itself) actively advertise on Google urging people to buy products from other manufacturers on the eBay website, they even give affiliates a list of recommended keywords if you want to make $$$ buying the keyworks on search engines and referring new users to eBay. See: http://keyword.ebay.com/
Any judgement coming out of this could also have a potential impact on Google if a company were to decide to seek damages from Google, but at least with Google you can ask nicely and they will remove advertisements.
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.
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.
-- Lincoln to (Col.) William F. Elkins, Nov. 21, 1864.
BytesTemplar.com
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.