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.'"

Comments

I Went To The Site

[DanielMarkham]

But it had an annoying pop-up, so I left without RTFA.

Great! Just great!

[Anonymous Coward]

from the great-just-great dept.

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.

Do pop-ups successfully sell anything at all?

[MECC]

"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

Re:Do pop-ups successfully sell anything at all?

[youngerpants]

I wish I could mod you up, but just ran out of mod points on the previous article

I'd take your analogy one step further; its more like walking into a shop and having the generic product thrown in your face. Thats REALLY not going to make me want to shop there

Like yourself, pissing me off doesn't make me want to shop there; I'll either walk out of the door or just browse to another site

The difference is, when I shop online, its even easier to go to a competitors store.

Re:Do pop-ups successfully sell anything at all?

[AKAImBatman]

Pop-ups probably don't sell anything, but they do generate clicks. Note how the advertisers always place popups, popunders, and popovers *exactly* where you're most likely to click by accident. e.g. My browser mysteriously loses focus, so I click to reset the focus so I can scroll. Suddenly a popover appears and I've clicked on it! I quickly close the resulting window, but somebody has already been payed for that click.

In any case, this ruling is really more about the issue of advertising on competitors sites. This ruling states that I can plug my Spacely's Sprockets product on Cosmo's Cogs website as long as Cosmo has third party advertising of some sort. Now if Cosmo was smart, he'd be using Google Adsense or a similarly featured product. He'd then be able to tell Google that he doesn't want to see my ads for Spacely's Sprockets. All of which violates no ones rights, yet everyone is happy. :-)

Re:Do pop-ups successfully sell anything at all?

[AtariAmarok]

"Pissing me off really makes me want to buy something"

When I see something in a popup or spam, it encourages me not to buy it and makes me think of the company as a scam. My opinion of "University of Phoenix Online" could not be lower as they sometimes send me 50 spams a day.

It is like if Coca Cola decided to do an ad campaign in which they paid the advertisers to drink gallons of Coke and then walk down the streets with fly undone peeing the processed Coke on passersby.

Re:Do pop-ups successfully sell anything at all?

[rlthomps-1]

I feel the same way, I don't buy products from pop-ups or companies that advertise via pop-ups

Sadly, there don't enough of people like us. I'm sure if market research showed that pop-ups had a terribly negative effect on consumers, they would cease to exist.

My guess is that firms feel that if you see a few pop-ups for a G-22 wireless camera, you might be ticked initially, but that you'll still be able to recall the product in the future. So 3 months from now, you may be in the market for such a camera. You may not remember where you first heard of it, but you know of the product and may very well look into purchasing one.

Anyone have a link to some sort of research on this topic?

that is, IF the adware was user-installed

[Speare]

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.

Install?

[Iriel]

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!

Thats fine...

[BooRolla]

I'm not concerned with what they show being illegal or legal. I'm concerned with how they get on my computer being legal or illegal.

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!

"Authorized" Adware

[kawika]

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.

Complete Crap

[DarkBlackFox]

'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."

In related news, the Mafia

[MobyDisk]

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.

Re:Does it really matter what ad-ware does?

[currivan]

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.

Re:So how could it be illegal if the servers are..

[Doc Ruby]

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?

This is A GOOD THING! And flawed analogies...

[hkmwbz]

People, let's keep both feet on the ground here! This ruling means that we (users) are allowed to make changes to pages we are viewing through our browser. In other words, it confirms that Firefox's Greasemonkey/Opera's User JS is perfectly legal. It confirms that the webmaster has no right to tell you how to display things in your own browser (removing ads, anyone?).

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.

Parse it carefully - it's actually a victory

[Shaper_pmp]

I'm with you on this, AC. This decision doesn't say anything about the legality (or otherwise) of malware - TFA specifically states:

"Though the case did not directly address consumer frustration over adware, which often gets onto computers without their owners' full knowledge, the court said it viewed WhenU's ads as authorized."

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.