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Adware Related To Web Sites Ruled Legal
Cobb writes "The 2nd U.S. Circuit Court of Appeals recently ruled that it is legal for adware programs to show you pop ups for knock-offs and rivals when you visit a companies website. 'In 1-800 Contacts's lawsuit against adware provider WhenU.com, the appeals court likened WhenU's ads to retail stores that place generic competitors next to brand-name products.'"
But it had an annoying pop-up, so I left without RTFA.
How could it be illegal if the servers are in Europe or something?
the Political Inquirer
Oh? You would prefer a ruling that made it illegal for you to control how and what content is displayed on your computer?
Legal precedent, Zonk. We don't get to choose our litigants, just the legal principles we'd like to see enthroned.
"the appeals court likened WhenU's ads to retail stores that place generic competitors next to brand-name products."
More like putting generic competitors in front of brand name products preventing you from reaching the product you want until you move the competing product aside.
Really, if come company really wants to get me to dislike them and not buy their product, just put annoying pop-ups on my screen in front of what I was looking at. Pissing me off really makes me want to buy something
"We are all geniuses when we dream"
- E.M. Cioran
It's more like me going into a shop and standing by a counter and offering better prices to the customers in that shop. I'm sure I'd get chucked out by security pretty quickly.
Do the users know they're getting this adware junk on their machines? If the adware was installed without the user's informed consent, then this is the problem. What the adware is actually doing on the computer is less of a problem. Who knows, maybe some users WANT competitive comparisons to pop up. Think of what a Froogle Toolbar widget would be like.
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If you do business in the US then you are obliged to abide by US law. Since they are selling advertising to US companies, they are doing business in the US.
I notice that the case didn't address the legality of adware being installed without a user's full knowledge. I find it humorous, but I have an idea!
They can inform the user that adware is being installed with a pop-up! Everybody reads pop-ups!
Perfecting Discordia
www.stevenvansickle.com
I'm now about to visit the 2nd U.S. Circuit Court of Appeals and stick a big poster over their front door reading "For cut-price justice which is just as good, why don't you use the 3rd. U.S. Circuit Court of Appeals instead? Our charges are only half as high, but our court officials are just as supercilious and our judgements just as incomprehensible. Why don't you book your appeal with us to-day? American Express and bullion accepted.
And then I'm off to see how long I last parading up and down outside WalMart with a sandwich board advertising our local deli.
Panurge has posted for the last time. Thanks for the positive moderations.
I should not have to dig through an install list to see if there is *anything* hidden in there. Especially anything that dials home and tells on me. If I'm downloading X, all I want is X. Period.
Screw thinking that trademark infringement is shitty- Installing a program secretely and going to great lengths to make it a bitch to remove, now that is shitty!
The court didn't have a lot of choice. WhenU was saying that the user authorized the software and it's the user's computer to do what they want. We all know intuitively that's bullshit, but the court needs evidence. If 1-800-Contacts didn't provide (enough) evidence of users having WhenU on their system without knowledge or consent then the ruling pretty much had to be for WhenU.
'In 1-800 Contacts's lawsuit against adware provider WhenU.com, the appeals court likened WhenU's ads to retail stores that place generic competitors next to brand-name products.'
That's bull. Ads for a competitor produced by a 3rd party on any site is more like walking into a Burger King and seeing McDonalds ads plastered all over. In the physical world, managers have the power to deny any 3rd party advertising on their premesis, and can remove any posters/flyers/whatever not explicitly approved from their property. Why is cyberspace any different? WhenU is a 3rd party, hired by a competitor to produce advertising when users enter a target site. Said site has no defense, or no method of blocking/taking down the ads, as the pop-ups are generated client side. How does that make any sort of logical sense- that anyone can advertise whatever they want as a pop-up on any given site?
Generally, when I visit a particular company's website, I'm interested in that company's products, not alternatives or knock-offs. If I were looking for "similar" products, I'd hit a search engine and search for "generic product X" rather than "brand name product X."
It is less the annoyance itself being legal than it is the content of the annoyance. Compare it to someone crapping on your doorstep. The court issue here was not whether it is legal to do so: it is more like whether it is legal to have undigested corn in the crap.
Don't blame Durga. I voted for Centauri.
What a sour analogy. I see it more like a retial store placing their generic items IN SOMEONE ELSES STORE. I work for a business that sells products online, and we have had customers complain to us becuase our website has hyperlinks to our competing websites (placed there by malware).
I don't think they understood the mechanism at work here! It's more likened to WalMart placing their generic products on K-marts shelves!
I just block all ads with my host file. If their domain name resolve to 0.0.0.0 then there is nothing to display or popup
& ie=UTF-8&oe=UTF-8
http://www.google.com/search?q=host+file+block+ad
What it means is that when someone's malicious software directs you to a competitor's site, that's no worse than having that software on board in the first place.
This could actually be good, because it may help when companies try and use similar law to deflect criticism and commentary.
In related news, the district court ruled that it is legal for the Mafia to use competing brands in their extortion efforts. A store owner complained that the local mafia was using Glock guns to threaten him when his store was selling Magnums. The store owner complained that it was not fair that his assailants were advertising competing products.
The judge stated that "It does not violate trademark law to use competing products during an extortion effort." He added that this ruling does not make extortion legal, it merely states that the brand names of the products is not relevant.
As annoying as adware is, this is a great ruling because it's a step toward protecting the right to modify sites' content on the client side generally. For example there are Greasemonkyey scripts that do similar things, such as post B&N prices next to Amazon ones. Content providers would love to ban anything that modifies the way pages are shown, so I think we're obligated to side with the adware vendor on this one. How they got the adware on people's computers is another matter entirely.
We're always hearing about "offshore servers" which aren't bound by US law, so otherwise illegal transactions can be processed by them. But where is this mystical "offshore"? Most countries are also signatories to the "mother" WTP/WIPO treaties, of which the DMCA is merely the US implementation. Certainly most countries with Internet data centers, trained sysadmins, electricity... Where is this "Interzone", where, say, US copyright laws like DMCA can't be enforced, but people run Linux on P4s with >1000GB:mo bandwidth for <$200:mo, without having to sacrifice a goat to the CPU god every Tuesday?
--
make install -not war
Now, spyware which installs itself on your computer and changes pages for you/displays ads is bad. But it would be terrible if we got a ruling saying that people aren't allowed to decide how pages display in their own browser.
If someone installs a piece of software and they are well aware of the fact that it will replace ads on web pages, then fine! It's up to the user.
What we need to deal with is software which tricks the user into installing ot, or which installs itself through the use of security flaws and similar things.
Also, replacing ads on sites is nothing like McDonald's replacing Burger King's posters with their own in a Burger King restaurant. Burger King is Burger King's property, remember? Like the browser on your PC is under your control? I would be more like McDonald's giving you glasses that detect Burger King posters and replace them with McDonald's posters in the display in front of your own eyes. In a way, at least :) You chose to put those glasses on, and Burger King has no say in what you choose to look at.
Clever signature text goes here.
There are a lot of spurious comparisons being made here to brick and mortar stores -- basically, "This is as if Burger King went in and put ads up all over a McDonald's." But that comparison is only true if the website owner has some kind of claim to your system.
Think for a moment about where that ruling would take you. For one thing, take that pop-up blocker off your system.
As I said in an anonymous post earlier, you don't get to choose the litigant, just the legal principle you wish enshrined. In this case: bad litigant, good outcome.
This ruling supports the principle that people can do what they want with their own desktop, even if it covers up someone's advertising.
Today it's an evil adware company. But tomorrow, it could be the AdBlock project.
Don't lose sight of the forest for the trees.
The trademark issue is significant. But my freedom to do what I want with my computer is more important.
To me, this is something of a victory - it says nothing about the legality of malware/spyware (how the adware gets on your machine). However, it does enshrine in law your right to modify how content is displayed once it hits your machine.
Basically, the decision says "it is legal to privately modify the content of a website for your own viewing pleasure". Think of this a a protective legal precedent for screenscraping, GreaseMonkey, etc, etc, etc.
Now, we know that adware is usually installed without educated user permission, but that's an entirely different case. We've been given the permission to (at least privately) modify/remix/mash-up content. Now all we need is to make covertly installing adware against the law and the law will have at last got this/these issue(s) right.
Everything in moderation, including moderation itself
As i see it this has nothing to do with the site that has popup's being shown on it.
Just as is i could choose to switch of the site background color in MY browser, or open a second browser window showing a competitors site, or setup a sript to popup a window saying "Armidillo" whenever i open a webpage. Then this is purly my choice as it is my computer.
Now if i have willingly installed some software that does the same thing, or opens some popup advert, again MY computer, i can do what i want.
This is in effect what i see this ruling as.
Now the issue of whether the user has really given informed concent for this particular piece of software may be a completely different issue, and outside this ruleing (after all was in the eula oyou agreed to, however dubious asuch a thing may be).
For the analogies being used, if i want to wear a hat that whenever i look at a a house of a judge detects it, an card or heald out before my eye saying "American Justice Sucks", purly my choice as it only affect me, and i can choosen to install that hat on my head.....
Offshore servers are pretty useless. If you're transmitting to the US you can be held to answer in a US court. Regardless of where your server might happen to be, if you have assets in the US banking system, they can be siezed. Likewise, if you set foot in the US, you can be arrested. Courts take a very broad view of their jurisdiction.
In any event, regardless of where the servers might be, the courts interpretation of trademark law is correct. Despite some of the implications, this is still a good thing.
bance.net
AFAIK, telemarketers cannot call your cell phone due to the fact that you pay usage charges in the form of air time, and that call costs you money. If this is, in fact, correct, why can Adware and Spam artists get away with doing the same thing when the typical company pays usage charges (in the form of bandwidth) for their connectivity?
As far as I'm concerned, my company loses money every time an ad pops up. How is this lawful?