Spyware Maker Sues Detection Firm

Luigi30 writes "ZDnet reports that RetroCoder, makers of the SpyMon remote monitoring program, are suing Sunbelt Software, makers of ConterSpy, a spyware detector program, for detecting the SpyMon as spyware. According to the EULA, SpyMon can not be used in 'anti-spyware research,' and detecting it is therefore a violation of it. 'In order to add our product to their list, they must have downloaded it and then examined it. These actions are forbidden by the notice,' a RetroCoder spokesperson said."

Comments

My god

[Centurix]

What is the world coming to.

Re:My god

[Anonymous Coward]

"We are allowed to seal your credit card numbers, tap your bank account, divert funds and use your idenity. You are prohibited from do anything about it because you clicked "I Accept" to our EULA, says a spokesman for SpyMon..."

Well, it didn't say that in TFA exactly, but it's a close approximation.

Re:My god

[OrangeTide]

Ah. the popular "Bend Over" EULA.

Re:My god

[AnonymousBystander]

Ah.. the popular soviet russia joke...
spywares sue YOU now becomes reality

Next, write this on your T-shirt
"By looking at me, you agree to ...

Re:My god

[gazbo]

I'm not sure there's a problem - this is how things should be. No, come back, I'm serious!

The modern world is completely founded on contracts of one form or another - an EULA being an example of such a contract. Now this case is clearly ridiculous, and as such I fully expect the challenge to fail (and further could set interesting precedents regarding the reach of EULAs). BUT the company should have the right to bring the challenge, and should be heard by a judge.

You cannot just wave your hands at something that sounds ridiculous and then refuse to hear it, because you certainly will end up ignoring meritous cases.

Re:My god

[cp.tar]

Oh, don't worry... they can't possibly win this case.

The EULA only enforces certain rules if you want to use the program. If you do not use the program - which would mean running the binaries, if I'm any judge - you may not use the program.

It would be most interested to see whether their EULA contains something along the lines 'this software is provided as-is, and is not fit for any express purpouse' - something similar can IIRC be found in MS Office. That clause would counter and dispel the clause that claims it can not be used in spyware research - regardless of the fact that the program does not have to be running for it to be examined. It doesn't even have to be installed, and the EULA doesn't even have to be read, let alone agreed to.

The package can be extracted, binaries examined... And, if the sued company wants to be evil, they can just claim that any software that forbids the end-user to include it in spyware research (and how in the world would you enforce that rule against NOD32's heuristics and automatic mailing suspicious binaries to their lab really escapes me) deserves to be added to their spyware list. They never had to get past reading the EULA to add the program to their list, so they never would have installed it and, of course, never agreed to the EULA in the first place. If they never installed the program, the EULA is unenforceable.

Finally, proving a negative is not what the US court system is based on, at least from what I've heard about it - innocent until proven guilty (unless it's a terrorism accusation, but I don't really want to troll right now). So the spyware maker has to prove that there was no possible way for the sued company to examine their binaries without agreeing to their EULA. If the sued company can prove that there is at least one way for them to do that, the spyware maker cannot prove that they didn't do it. Innocent until proven guilty.

Hell, I could successfully defend them against this, and IANAL.

Re:My god

[Anonymous Coward]

simply ask someone you don't know in the street to download,intall and agree with the eula. this way your company is safe from any eula ?

Re:My god

[Anonymous Coward]

My god (Score:5, Insightful)
What is the world coming to.

Uhh... Where's the insight in that?

Re:My god

[alnapp]

You mean like this

Re:My god

[Centurix]

Maybe he does move in mysterious ways...

Re:My god

[gullevek]

just reflected to what the world has become ... a place where two line comments get +5 insightful.

Re:My god

[RevMike]

The general gist is correct, but "innocent until proven guilty" is a principle that applies to criminal matters, not civil matters.

Re:My god

[Mike Peel]

But it's not about the EULA - it's about restrictions downloading the program in the first place. From the article (in fact, the first paragraph):

A maker of surveillance software is using a product download agreement to attempt to bar detection by anti-spyware tools, raising questions about the legal scope of such agreements.

So, according to the article, the anti-spyware people shouldn't have even been able to get a copy of the program to classify it as spyware. Is it possible to classify a program as spyware without even looking at the program?

Re:My god

[printman]

Since this would be a civil case, the standard is "the preponderence of the evidence". In any case, click-through EULAs are not always enforceable and, as you say, you can access the binaries *without* agreeing to the EULA or running them...

Re:My god

[akakak]

Whats next - suing an OS maker for knowing what you do on your PC all the time?

Re:My god

[ShadowNetworks]

The world is coming to companies being legally able to install spyware and adware on your computer without your knowing and then you cannot remove it because it's a violation of the EULA. I bet even if you reformatted, it would somehow violate the stupid EULA. There are days I hate private enterprises.

Re:My god

[Spock the Baptist]

Ah, but Sunbelt *never downloaded* it. They obtained their copy otherwise, thus the *PDA* is unenforceable in their case. SpyMon was already on a client's computer, and was giving the client grief. It was from an examination of this computer at their client's request that SpyMon was detected, and further dealt with.

Sunbelt never *ran* SpyMon, nor did they ever download it, therefore no EULA[1], nor PDA was violated.

[1] Other post deal satisfactorily with the *run* issue.

Re:My god

[Cerv]

>>A maker of surveillance software is using a product download agreement to attempt to bar detection by anti-spyware tools, raising questions about the legal scope of such agreements.
>So, according to the article, the anti-spyware people shouldn't have even been able to get a copy of the program to classify it as spyware. Is it possible to classify a program as spyware without even looking at the program?

Yes. Spyware is classification of programs based on their behaviour. The binaries or source code can be seen as one description of a program's behaviour, but they are not the only ones. The undesirable clauses in the EULA could be enough, or the company's own descriptions of the product.

Also, it's possible to obtain a copy of a program's binaries without agreeing to the download agreement. Use an intermidiary say. Now he/she/it may be in violation of copyright law, and possibly said download agreement too, by passing a copy on to you but that's not the point here.

Re:My god

[MysteriousPreacher]

The person who installed and agreed to to the EULA could then be sued for allowing their installed copy to be used in research.

Re:My god

[AndroidCat]

Heh. Sunbelt is heavily involved in a group that has a EULA that makes "bend over" look tame. Google for the "Lisa Clause".

Re:My god

[Alex P Keaton in da]

When did spyware get "civil rights." Will this be known as "Spyware profiling?" In all seriousness, shouldn't the makers of spyware detection software only be responsible to customers?

Re:My god

[dnoyeb]

EULAs and contracts do not trump other applicable laws. No they can not win.

Re:My god

[Mattcelt]

Since when did EULAs become meritorious in any way, shape, or form?
They've been stuck down as non-binding as many times as they've been upheld;
they often have clauses in them which are not only onerous, but downright illegal;
they do not have any form of traditional contractual agreement methods, wherein both parties have the ability (allowed by contract law) to modify the contract to their satisfaction;
and they represent the interests of one party to the exclusion of the rights of the other.

Tell me again why this sort of dispute should be allowed past the doors of any courtroom?

Re:My god

[Psion]

I beg your pardon, but isn't it more correct to say that "innocent until proven guilty" does apply to civil matters, only the burden of proof is less?

Re:My god

[ezberry]

It isn't true that both parties have to have the ability to modify the contract to their satisfaction (I'm in law school and I've taken contracts... ). EULAs are adhesion contracts, which force the accepting party to the terms of the offering party. From Obstetrics & Gynecologists Ltd. v. Pepper (693 P.2d 1259) 'An adhesion contract need not be unenforceable if it falls within reasonable expectations of the weaker or "adhering" party and is not unduly oppressive. However, courts will not enforce against an adhering party a provision limiting the duties or abilities of the stronger party absent plain and clear notification of the terms and an understanding consent.' So, in the end, you are right that this won't be enforced, but for the wrong reason.

Re:My god

[QMO]

If they can find them.
The premise was that you didn't even know who they were in the first place.

(Not that I think that defense would work.)

Re:My god

[ezberry]

"The general gist is correct, but "innocent until proven guilty" is a principle that applies to criminal matters, not civil matters."

That's patently false. Sometimes, the burden of proof is with the defendant because of the nature of the case. For example, in cases of joint liability (for example, where 2 people are shooting wildly in the woods and a third person is shot, and neither of the 2 people actually know which one killed the 3rd person), then the 2 people must prove that they didn't kill the 3rd person in order to not be held personally liable. This only arises after it has been shown that they were jointly liable, though.
Another example is res ipsa loquitor. This means that the thing that happened is evidence of negligence unto itself. Usually, the plaintiff is not in a position to be able to prove what exactly happened to him, but the certain thing that happened to him could only have happened through negligence of the defendant.
In all of these cases, you still need to hale someone into court and show that they are negligent and then they may have to prove otherwise, but that's not assuming that they aren't innocent until proven guilty.

Re:My god

[jcr]

Oh, don't worry... they can't possibly win this case.

This isn't the kind of case that's filed to win in court, its purpose is to intimidate the defendant. Hopefully the court will smack them good and hard.

-jcr

Re:My god

[Anonymous Coward]

Actually, no. Civil matters are decided by 'preponderance of evidence'. The two opposing sides basically start out on equal footing, and whichever side can provide the most relevant material to justify its position wins the trial.

'Innocent until proven guilty' means that one side (the prosecution) has some burden of proof that must be overcome before their argument can even be considered. Unless the burden of proof is met, the defense doesn't even need to present any material in order to win the trial.

Re:My god

[RevMike]

I beg your pardon, but isn't it more correct to say that "innocent until proven guilty" does apply to civil matters, only the burden of proof is less?

No, it isn't. For one thing, a civil trial will never result in a verdict of guilty or not guilty, but in a verdict of liable or not liable. Second, there may or may not be a presumption of liabilty for any particular matter. While a prosecutor always must establish the guilt of criminal defendant, a civil defendant in some cases may be presumed liable unless the defendant establishes that he should not be liable.

Re:My god

[3dr]

If you look at the download page and the download agreement itself, you'll find that it only excludes people working for antispyware or antivirus companies from downloading it.

The software could still be classified by:
* Basing the classification on the software company's claims of what the SW does
-or-
* Having a friend download and install it who meets the above criteria. Then you can poke around on their machine to see what it does and classify it accordingly. The EULA and PDA are never violated by the person who agreed to them prior to download and installation.

Re:My god

[OhHellWithIt]

The general gist is correct, but "innocent until proven guilty" is a principle that applies to criminal matters, not civil matters.

The warnings on the download page talk about criminal court. Whatever they're paying the attorney that wrote it for them is too much.

Re:My god

[Sirch]

Am I the only one who finds the words 'gynaecologists' and 'adhesion' in the same sentence mildly disturbing, yet strangely erotic?

Yes? Alright, I'll get my coat...

Re:My god

[KarmaOverDogma]

"Finally, proving a negative is not what the US court system is based on, at least from what I've heard about it - innocent until proven guilty"

Have you seen the courts in action lately?

"Hell, I could successfully defend them against this, and IANAL."

Wrong.

If you install the program you are bound by the EULA. I think your resasoning may appear sound on first examination but as you say, you are not a lawyer, and courts often have their own ways of looking at the facts of any given case. When you talk of "extracting the package...." in any other way than an installation, you are looking at probable violation of intellectual property rights, as interpreted and ruled in case after case, by the court systems today. If the code or other properties were examined in any other way than by examing how the product perfomed after an installtion (where the EULA had to be agreed to) that may well leave the defendent wide open to a violation of the DMCA or some other law pertaining to intellectual property. SpyMon is, in all liklihood, proprietary, and you can be sure that RetroCoder would *not* give Sunbelt software permission to dissassemble or in any way modify or examine their code without their express written consent first. I doubt such consent was ever given.

Don't misunderstand me: I think RetroCoder's SpyMon may very well be SpyWare, but just becasue you dont like a law or a company doesnt mean it they don't have a case. What really bothers you , I think, is that EULAs and other Intellectual Proprty Rights Laws are designed to give far too much power to the owners and therefore leaves room for abuse of customers, consumers, or other interested parties. Indeed, this case is a perfect example of that abuse. To that belief I say "RIGHT YOU ARE." The laws with regard to EULAs and Copyright (the DMCA in particular) need to be changed.

In the mean time Sunbelt could very well lose this case, as they well may deserve to, given how the pertinent laws are constructed and interpreted by the courts. Either that, or we can hope that the court finds some way to declare the law(s) on the basis of which the case has been filed as unconstitutional, but I wouldn't hold out much hope for that.

In short, don't point your non-lawyer finger at the bad company or the courts. Point it at the Lawmakers who passed the law and their greedy, shortsighted supporters who lobbied for these highly misguided pieces of legislation in the first place.

Put another way - who is more foolish? The fools who propose a law, the fools who pass a law, the fools who abuse the law, or the fools who watch it all happen, get angry, and then do nothing about it except maybe complain on /. or other foums ? (I now duck my head in anticipation of being modded down as troll or flaimbait)

Have *you* joined the EFF yet or wriiten your congressman?

Re:My god

[onepoint]

I think you wrote it out nicely, but I think I've a work around towards your argument of enforcement of the EULA. so I would present the following

a) both firms are software houses, this would negate the stronger/weaker side of the argument. make both sides equal to the judge.

b) both firms are familiar with Eula's, this would slow down or stop spy-ware detectors line of thinking. judge would only have to say " you have one in your software ", spy-ware detection company says "yes sir", Judge says " well you would expect people to agree to yours, so you now have to agree to their " ( or at least place them in a bad light )

c) because both parties are equals, the courts might lean towards the spy-ware company.

I am not a lawyer, been using lawyers since I was 9, I like lawyers. Lawyers make my life easy.

Re:My god

[RevMike]

The warnings on the download page talk about criminal court. Whatever they're paying the attorney that wrote it for them is too much.

That is really pretty funny. Lets just assume, for the sake of argument, that there might be a criminal question here. The idea that a prosecuter, who you'll recall is an elected official or is working directly for an elected official, is going to spend time enforcing an EULA is just ridiculous. All sorts of "crimes" are ignored everyday because they don't warrant prosecutorial effort. In order to get reelected, prosecutors spend their time working on cases that are important, or percieved to be important, to the voters.

How many slashot readers have ever bounced a check? Did you now that this is generally a crime - at least in the United States? When is the last time you've ever heard of an "average Joe" who accidentally bounces a check being pursued and prosecuted? Likely never. Procescutors will pursue serious swindlers and such, but not the guy who bounced an occassional check. Even if they wanted to, the voters would say "Couldn't you be spending your time better putting away rapists?"

Re:My god

[Phisbut]

The warnings on the download page talk about criminal court.

Yes... it then goes to say "Infingement of a copyright licence is a criminal offence." I couldn't read the rest, was laughing to much...

Re:My god

[Anonymous Coward]

you mean, "My intelligent designer" of course. Why would you bow to a lesser god, go for the one that designed it instead.

Re:My god

[Anonymous Coward]

I'm right with you on hating this sort of thing, but are you sure you can blame "private enterprises" for it?

I can think of plenty of governments and government-run organisations that would just LOVE to have this software installed on their citizens' PCs. And not all of them are communist dictatorships.

Really, when it comes down to it, an EULA is preferable to a PATRIOT act. At least you can choose to do without the product if you can't accept the EULA. It's a bit harder to choose to do without the government.

Re:My god

[ScuzzMonkey]

This is all really just an outgrowth of copyright protection... "spyware", "adware", and "software" are all just on a sliding scale of annoyance, but the unfortunate truth is that as long as more reputable software companies champion draconian EULAs and their right to control over the way software is run on your machine, the spyware and adware companies will enjoy those same legal rights.

Consider... what is the difference between Microsoft's latest DRM scheme built into WMP and say, the latest P2P app bundled with Gator? You probably don't want either of them on your computer, but they both have a click-wrap EULA protecting them, and your only legal choice is to not install the software they are bundled with if you really don't want them.

The fact that you can get rid of Gator and it's ilk pretty easily is just because they don't have Microsoft's resources to sue anti-spyware makers. In fact, it's a big reason why only MS can safely enter the commercial anti-spyware market... they have the big guns to handle the lawsuits. But they are relying on the same legal principles as the spyware manufacturers to defend them when they bundle crap into Windows that they don't want you to remove.

This is all setting up a pretty interesting challenge for the courts. I expect it won't fully play out for years, and probably not consistently even then, but it really gets down to the heart of the matter: who decides what runs on your computer? You? Or any software company with access to your box?

Re:My god

[MemeRot]

The whole point of this software is to secretly install it on someone else's computer - it's a keylogger and screen grabber. The person whose computer this gets installed on never agreed to any eula. So if an anti-spyware company found an infected box, neither they nor the person whose computer it is are in violation of the eula. Nor the jerk who installed it, since I doubt they expected to get caught.

From the forums you see people are using this to try to spy on spouses they think are unfaithful, etc. Give it up people, if you're installing spyware to monitor your spouse for infidelity your relationship is already over.

Re:My god

[Anonymous Coward]

"The whole point of this software is to secretly install it on someone else's computer - it's a keylogger and screen grabber. The person whose computer this gets installed on never agreed to any eula. So if an anti-spyware company found an infected box, neither they nor the person whose computer it is are in violation of the eula. Nor the jerk who installed it, since I doubt they expected to get caught."

THANK YOU!!!! i've been reading all of the arguments so far and haven't seen anyone address this. this software is designed victimize. if the victim finds it, reverse engineers it, creates a removeal tool, or gets someone else to do any of the above, there isn't a damn thing SpyMon can do about it. it's malware plain and simple.

someone mod parent +10 DUH!

Re:My god

[B3ryllium]

Next, write this on your T-shirt
"By looking at me, you agree to ...

Sadly, for full effect, it would have to be printed on the *inside* of the shirt.

Re:My god

[RRRussian]

You make some good points, but there are some problems with what you said.

a) both firms are software houses, this would negate the stronger/weaker side of the argument. make both sides equal to the judge.

Weaker, at least in this context, does not refer to some physical or financial bound, it refers to the weak position that the party forced to adhere to the EULA represents. Therefore, both sides are not necessarily equal to the judge.

b) both firms are familiar with Eula's, this would slow down or stop spy-ware detectors line of thinking. judge would only have to say " you have one in your software ", spy-ware detection company says "yes sir", Judge says " well you would expect people to agree to yours, so you now have to agree to their " ( or at least place them in a bad light )

This is up to the prosecution to do, and the judge to ignore. The merits of the defendant's EULA are not on trial, their usage of the spyware is, and their violation of the spyware EULA. The judge hopefully can't honestly reason that "since you have a standard contract that other people accept, you have to accept this absurd one."

c) because both parties are equals, the courts might lean towards the spy-ware company.

And as I've mentioned, both parties are not equal.

The GP points out that the contract fall within "reasonable expectation" and that it is not "unduly oppressive", and "courts will not enforce against an adhering party a provision limiting the duties or abilities of the stronger party absent plain and clear notification of the terms and an understanding consent," that implies the judge would rule for the defendant.

Re:My god

[Anonymous Coward]

Sounds like the old pirate BBS's and Warez sites which stated something along the lines of: "If you are a member of law enforcement or an anti-piracy agency, then you may not enter this site and must disconnect immediately!"

We see how well that worked out for them.

Doesn't a such a disclaimer always mean that something illegal/unethical is going on?

Re:My god

[onepoint]

very good points ( you sound like one of my attorneys reviewing my thinking ). In reading the issue, I felt that the Eula was the main battle ground, and since this wont go to trail by jury ( the spy-ware company would be nut's, even I can not craft a defendable position for what they do, and I'm good and having and creating a defensible position ) I figured the rules would be guided by the convincing of the judge.

I would think that the spy-ware's people are going to hit the detectors company with small issues consistently, just keep chopping at them. scoring small gains.

rough battle for sure. I can not see the clear outcome, again it comes to the word " hopefully".

thanks again for your views.

Re:My god

[networkBoy]

"it only excludes people working for antispyware or antivirus companies from downloading it."

Shit, based on that alone I would classify it as MalWare, a Virus, and SpyWare. Seems like a no-brainer to me.
-nB

Re:My god

[empvirus]

Even so, one would still have to prove the company agreed to this EULA, and the likelihood of that happening is doubtful.

Re:My god

[Castar]

Hmm, if that's true, that's too bad. The meat of the court case will then revolve around whether or not they are bound by the EULA, not whether or not the EULA sucks donkey balls.

I'd much rather have a decision involving the latter.

Re:My god

[mink]

Had you formatted your post as follows

"just reflected to what the world has become ...
a place where two line comments get +5 insightful."

You also could have been +5 insightful.

Re:My god

[buck_wild]

(Note to bank teller) "By reading this note, you agree to grant me all the money in your cash drawer, as well as all the money in the vault, by placing it in this very large suitcase immediately. By deviating from, or adding any steps to this process, you will be in violation of this agreement. All violators will be prosecuted to the fullest extent of the law."

Re:My god

[Anonymous Coward]

"BUT the company should have the right to bring the challenge, and should be heard by a judge"

and should have the right to watch itself being laughed out of court.

in a sane world, that is.

Re:My god

[arminw]

.....an EULA being an example of such a contract......

A EULA is NOT a valid contract, never will be. A contract has to IDENTIFY unambiguosly the contracting parties. There is NO way to prove or disprove WHO clicked a mouse or ripped open a package. Also, BOTH persons to a contract have to be of legal age (not minors) to engage in a legally enforceable contract. In addition to all that, a contract is invalid if it violates any laws.

Legal contracts will at minimum require a signature of each party and if the contract is significant, such as most real estate transaction, an official witness called a notary.

Re:My god

[arminw]

....If you install the program you are bound by the EULA....

If a program is installed in a computer, that still doesn't prove WHO did. The *AA has to get the evidence from an ISP for who shared copyrighted files. If they can't get that evidence because it no longer exists, then they are at the end of the road.

Computer use can be pretty anonymous and determining who agreed to what is more often than not impossible.

Re:My god

[adamgolding]

does this mean we can get around ANY eula by having others install our software for us?

Re:My god

[cp.tar]

Forgot to mention: I'm not American.
So some things, like writing to my congressman, just do not apply.

However, given all the idiocies they've written in their EULA, and the fact that examining someone's computer does not bind you to the EULA since you are not the end user, I maintain that I'd be able to defend them just by logically disassembling RetroSoft's lawyer's claims.

Re:My god

[OrangeTide]

I used to have that disclaimer on my site too! It only worked in some states apparently. And never works for the FBI. Some states decided that if someone asks if you're a cop and you deny it, that it's entrapment, or something weird like that. Or at least that is what I was told, I didn't actually research it.

i hate spyware....but..

[atarione]

their EULA is GENIUS>.... evil evil genius.

Re:i hate spyware....but..

[eric76]

It's just a lame attempt that is doomed to failure.

I can't believe that a court would find in their favor.

Re:i hate spyware....but..

[piquadratCH]

No, it isn't genious. It's only the crap you'd expect from an asshole...

Re:i hate spyware....but..

[mr100percent]

It doesn't have to be genius. My first idea of defense would be, maybe they were scanning someone else's computer, someone who had previously installed it and had no idea that another person would be using anti-spyware research on that machine. They might then go and sue the installer of the system for negligance or something. Who knows.

Re:i hate spyware....but..

[Rocketship Underpant]

1. EULAs are BS. The spyware company happily uploaded a copy of their software to the anti-spyware company on request. Clicking the install button below a 3000 word pile of legalese after you've been given the software isn't a valid contract, for reasons well explained many times before on this site. Heck, the spyware company doesn't even know what individual supposedly "agreed" to the EULA. The janitor? A 12-year-old child? Could have been anyone.

2. Why is the industry so lawsuit crazy? Lawsuits are supposed to reimburse you for actual unlawful damages done. What damage was done by the anti-spyware company downloading the software? A few cents' worth of bandwidth at the most. What damage was done by installing it? None at all. This is surely the most baseless lawsuit ever.

(I know that including the spyware definitions in anti-spyware software will [one hopes] hurt the spyware company, but that's not what the suit is about.)

Re:i hate spyware....but..

[eric76]

Yeah, but a court hasn't found in their favor.

In fact, there isn't even a suit yet. Merely the threat of one.

If it did go to court, it should probably take a few years before anything happened, anyway. By that time, the question will probably be moot.

Re:i hate spyware....but..

[kartack]

A company or individual can sue for slander. I'm no legal expert however maybe RetroCoder could consider CounterSpy as slandering them when they mark SpyMon as spyware. This however would have nothing to do with the EULA in particular. You hear about this kind of court case usually in regards to the media, if I review your software and give it an unfair and bad review I just might end up on the receiving end of such a lawsuit. I would think though that given the nature of SpyMon that this would be exceedingly difficult to prove, since you can't sue over slander if the comments are true (aka its fine to call a pice of crap a piece of crap, but you can't call something that most people would consider good a piece of crap.)

If RetroCoder indeed is going to attempt to sue for violating the EULA and they go all the way through court and lose I'm curious if this will have any implications on future EULA related cases. Others have been saying that EULA's are hard to prove in court but every time an EULA cannot successfully be defended it means that it will be all the more difficult to show in future. If enough attempts are made and failed maybe companies will stop trying to claim all these crazy protections in EULA's and decided to simply save the costs of hiring lawyers to write them.

I would tend to agree with some others that there should be legal mechanisms in place to properly protect software. Neither copyright nor patent properly fit this bill and no one seems to be interested in trying to come up with the appropriate thing.

Re:i hate spyware....but..

[2XLSE]

Too bad the scores only have a category Insightfull... The statement "It's only the crap you'd expect from an asshole..." rather sounds "inside full"...

Re:i hate spyware....but..

[Anonymous Coward]

A Canadian farmer used his own seeds. In came Monsanto with genetically modified plants. Their pollen with patented gene constructs came on the farmers' seed. Now the farmer has to pay Monsanto for their wonderful invention.
Because some sleeping politicians had accepted that Monsanto had a patent on their genes, without considering the consequences.

A judge is not there to decide what's a fair law. He is there to implement the law. So however unfair this EULA construction seems to be, they do stand a chance if it right is according to the law.

-----
I'm posting anonymously cause last time i criticised the US I was banned for weeks.

Re:i hate spyware....but..

[Shano]

Slander only applies if the statements made are false. Given that the EULA specifically disallows anti-spyware research, it is reasonable to believe that RetroCoder themselves consider their program to be spyware - if not, then why is the clause there?

In which case, slander cannot possibly apply. This is a purely contractual issue, and centres on whether a) the clause in the EULA is valid, or b) on whether this EULA is a valid contract at all.

Re:i hate spyware....but..

[leoboiko]

I don't think I'd call it "genius", it's not so smart a move. I'd call it dareful, however. And the reason why a small evil company that nobody cares about has the balls to come with absurd clauses on their EULA is that well-known, large and renowned evil companies rotinely do so. Kinda like those weak bullies who bullied you in high school only when the bigger bully was around.

Re:i hate spyware....but..

[kartack]

Again I'm not a lawyer but I remember the Monsanto vs unlucky farmer case. I was under the impression the court found that the farmer's theory of cross pollination wasn't sound and that was why the case was decided in Monsanto's favor. If the court did accept the farmer's theory then maybe they would have decided the other way.

I disagree though, I believe that deciding what is fair in law is a key part of the role of the judicial system. Maybe this is not really the jurisdiction of the lowest level of judges but that is what the supreme court is there for. In an idealized version of democracy the people elect the politicians. The politicians make the laws and everybody is happy. However, democracy can run into a problem (along with lots of other problems) in that it allows the majority to rule over the minority. Thus if such a law is created, one say that suppresses the minorities, the courts are there to allow the minority to explain why a law is a problem and then the courts either tell the politicians to rework the law, or they simply change it themselves (I'm not sure on this last point, I think the courts in different countries have different powers). Thus the courts are there to control the laws and make sure that they are fair. Though they are also there for a number of other reasons. Judges are not computers, they do not simply read the letter of the law and apply it, they interpret the law as they see is best.

Though again I'm no legal expert so if someone whom is wishes to correct me I will accept your statements as being more accurate then my own.

Re:i hate spyware....but..

[BushCheney08]

It's only the crap you'd expect from an asshole...

Dunno about you, but I don't expect too much else from assholes...

Re:i hate spyware....but..

[coinreturn]

What damage was done by the anti-spyware company downloading the software? A few cents' worth of bandwidth at the most. What damage was done by installing it? None at all. This is surely the most baseless lawsuit ever.

Though I am by NO means defending a spyware company, damage you overlook can most certainly be alleged to have been done. For example, having your program classified as spyware and blocking it from being installed costs said spyware company "customers" and hence, potentially at least, revenue. For example, if the anti-spyware program labeled your innocent shareware game as spyware and blocked it from being installed, I bet you'd be pretty pissed. Also, it could be alleged that blocking a program as spyware is an anticompetitive act.

Before you flame, you should know that I hate the heinous spyware people and am merely pointing out some legalities that could give the case a dollop of merit.

Re:i hate spyware....but..

[PitaBred]

GENIUS! The grandparent even spelled it right! There's no excuse.
And it is clever. It's an asshole thing to do, but that doesn't mean that it can't be clever as well.

Re:i hate spyware....but..

[Anonymous Coward]

Next time you reply to a post, please read it to the end. Especially that part at the end in parenthesis anticipating replies exactly like yours. Thank You. --Everyone.

Re:i hate spyware....but..

[HAMgeek]

I believe that deciding what is fair in law is a key part of the role of the judicial system. Maybe this is not really the jurisdiction of the lowest level of judges but that is what the supreme court is there for.

I couldn't disagree more. It has nothing to do with fairness. In the case of the supreme court it has everything to do with whether nor not the law in question conflicts with the letter of the constitution. It has nothing to do with laws or court cases in foreign lands, nothing to do with international law, nothing to do with what a particular judge things the constitution should have said.

courts either tell the politicians to rework the law

ONLY if the law conflicts with some clause in the constitution.

or they simply change it themselves

Never ever ever ever ever. Judges are not elected at the federal level. In some states they are, but not federal judges. Their job is to filter things thru the exact wording and original intent of the law. In the case of the supreme court, the final arbiter is the constitution. If someone doesn't like a law that doesn't conflict with the constitution, lobby the legislature to change it, vote out those who don't vote to change it, or get a constitutional amendment passed. If you want some right that isn't spelled out in the constitution, pass an amendment. Don't have some panty waste judge decide that if the founders had realized that some folks wanted to be able to do, whatever, they'd have included it in the bill of rights, so it must be OK.

Re:i hate spyware....but..

[fossa]

Perhaps the user installed the anti-spyware program? And thus may be assumed to accept the anti-spyware software's definition of spyware? So if it flags innocent software, so what. Can I not install an anti-everythingware program if I so desire?

Re:i hate spyware....but..

[coinreturn]

Perhaps the user installed the anti-spyware program? And thus may be assumed to accept the anti-spyware software's definition of spyware? So if it flags innocent software, so what. Can I not install an anti-everythingware program if I so desire?

Certainly, you may. However, your original statement that no damage was done is the point against which I was arguing. If a program is sold as anti-spyware, but is truly anti-everything, then perhaps damage is done to a third-party, though unknowing to the end user.

Bottom line: I concede that the lawsuit is most surely baseless and should be thrown out. I often fantasize of drawing jury duty on such an absolutely lame case.

Re:i hate spyware....but..

[darkmeridian]

The company makes quite clear that what its software does may be illegal under some jurisdictions. In other words, it contributes to others spying. So how can it use the courts to enforce this contract, which prevents a victim from stopping themselves from being a victim of crime?

Re:i hate spyware....but..

[Anonymous Coward]

I don't know if anyone can answer this, but if a minor performed all your installs would you be exempt from the EULAs? If I understand correctly, minors cannot activate a legally-binding contract without parental consent. If my little brother installed all my apps and 'agreed' to all the EULAs, would they be invalid because he's only 17?

Re:i hate spyware....but..

[jahudabudy]

. If you want some right that isn't spelled out in the constitution, pass an amendment

But thats not the way it is supposed to work. We, the people, are supposed to have any and all rights that are not explicitly granted to the federal government, or denied us by (constitutionally sound) laws. So, for instance, I don't have the right to print money; that is reserved for the federal government. Nor do I have the right to drive as fast as I want on the highway; laws have been passed restricting this right, and these laws have been found to be constitutionally sound (well, I honestly don't know that anyone has ever challenged speed limits, but you get the point). I DO have the right to brew beer in my own home, NOT b/c the constitution GIVES me that right, but b/c it no longer DENIES me that right. The 21st ammendment doesn't grant me the right to brew my own beer, it negates the 18th ammendment that denied me that right. Prior to the 18th ammendment, the constitution didn't say anything about alcohol at all, so Americans, by default, had the right to brew, since it wasn't denied them.

Their job is to filter things thru the exact wording and original intent of the law.

Don't have some panty waste judge decide that if the founders had realized that some folks wanted to be able to do, whatever, they'd have included it in the bill of rights, so it must be OK.

Uhm, deciding that if the founders had realized $X (or $X had even existed 250 years ago), then they would have done $Y, so we should do $Y, isn't that "filter[ing] things thru the exact wording and original intent of the law[/constitution]"? Besides, the Bill of Rights is not, and was not meant to be, an exclusive list of the rights we get. It was merely put in to emphasize the ones that the founders felt were absolutely the most important. Check out the 9th ammendment, sometime.

Re:i hate spyware....but..

[Fulcrum of Evil]

It has nothing to do with laws or court cases in foreign lands

We do use English common law as precedent in some cases, so yes, they do have an effect.

Re:i hate spyware....but..

[Fulcrum of Evil]

For example, having your program classified as spyware and blocking it from being installed costs said spyware company "customers" and hence, potentially at least, revenue.

Using the libel statutes as a basis, damaging though it may be, you can't sue if it's true, and this stuff is advertised as spyware. That's like getting turned down for a date because the girl found out you were a lech.

Re:i hate spyware....but..

[ConcreteClam]

... but a GENIOUS ASSHOLE, at that! Mwahaha!

Re:i hate spyware....but..

[Old Wolf]

their EULA is GENIUS>.... evil evil genius

Clearly inspired by His Noodly Appendage

If it looks like a duck and sounds like a duck...

[VGPowerlord]

Since when could a company dictate to other companies what how they could classify the software?

If it looks like a duck, and sounds like a duck, then it must be a duck. :P

That's not going to fly

[ReformedExCon]

If you don't agree to the EULA, you can't use the software. Isn't that the way it works? So good riddance.

Re:That's not going to fly

[Anonymous Coward]

If you don't agree to the EULA, you can't use the software. Isn't that the way it works? So good riddance.

There are countries where the EULA isn't the paper worth it's not written on. Go figure.

Re:That's not going to fly

[Anonymous Coward]

No, that's not the way it works, especially when the EULA is illegal, unenforceable, unconstitutional, or what have you. When will people learn that EULA's are not necessarily legal, binding, and enforceable?

Stand up for yourself once in a while, you may like what happens!

Re:That's not going to fly

[surprise_audit]

But, as other people have pointed out already, if you (as the spyware detector programmer) sell your program to someone who has spyware already present on their computer, you're completely off the hook. Just because your program can detect SpyMon and correctly identify it as spyware, it doesn't necessarily follow that you *must* have downloaded, installed and executed a copy of SpyMon yourself. It's very likely that you independantly thought up ways that spyware might hide, and put in detection methods to locate such junk. It's also very possible that SpyMon is using a "well-known" method of hiding, such as the "$sys$" method that Sony tried recently.

The answer...

[Anonymous Coward]

...is for the detection firm to add a section to their EULA that forbids anti-anti-spyware research!

Re:The answer...

[jkrise]

Even better answer would be detect it as SCOndomware.... and then say it is 'probably spyware, but cannot be clssified as such for probably legal reasons'.

Re:The answer...

[slavemowgli]

You moderators might think that's Funny, but it's actually a very interesting point. If I can, basically, say "you're not allowed to come anywhere near my software" in the EULA as a spyware maker, why can't I say the same thing as an anti-spyware maker?

What's nice about this is that it works out no matter whether such a clause would be accepted: if it is accepted, then the spyware maker would have violated the anti-spyware product's EULA by looking at how it classifies the spyware. If it's not accepted, on the other hand, then the corresponding clause in the spyware's EULA would also not be accepted.

Myself, I think that such clauses aren't valid, but I also think that even if a court thinks they are, it'd be pretty impossible to actually get a case, as they could trivially be circumvented. For example, if I visit a friend and use their computer to do something in Photoshop, am I then bound by Photoshop's EULA? Of course not; I didn't buy the program, I didn't install it, I didn't agree to anything. My friend might be (or not), but I certainly am not. A spyware maker could do the same thing: just don't install the spyware yourself, but rather classify it after it infected someone else's computer. (On a side note, I doubt that most spyware actually presents a EULA to the user where he can clearly see what is going to happen, where he's given the opportunity to say "no, thanks" and where, if he does, the spyware will not be installed, anyway).

Re:The answer...

[Anonymous Coward]

Why not just make a product that acts as a third party software uninstaller (like Advanced Uninstaller), but has an "unintentional bug" where only "select" programs (ie. Spyware/Adware) are listed?

Re:The answer...

[Danse]

What's nice about this is that it works out no matter whether such a clause would be accepted: if it is accepted, then the spyware maker would have violated the anti-spyware product's EULA by looking at how it classifies the spyware. If it's not accepted, on the other hand, then the corresponding clause in the spyware's EULA would also not be accepted.

Umm.. what exactly would they have to look at? All they would have to do is run the software on a machine that had their spyware proggy on it and the anti-spyware app should come right out and tell them that it's spyware. It's kind of the main thing that it's supposed to do. I don't see how you can tell people that they're not allowed to look at the very information that they're using your product to obtain. Your second point seems more valid to me. Guess it's up to the courts.

Re:The answer...

[VJ42]

Of course, then the spyware firms would add a clause that forbids anti-anti-anti spyware research...

Re:The answer...

[Anonymous Coward]

You can easily put "I wrote this software for myself, usage by people other than me is prohibited" in the EULA and still make it downloadable.

If you sell the software though, it is another story.

Re:The answer...

[AndersOSU]

The ultimate solution is an anti-times-infinity-spyware research clause.

Re:The answer...

[Anonymous Coward]

infiniti + 1 anti's! HA! HA!

If your friend installs software on his computer and you go on his computer and do something illegal with that he would be responsible for what you did. *(I would guess by the logic in this thread)

So if I buy a DELL with Windows installed and download an mp3 with said DELL computer with Windows on it then by the same logic Microsoft and DELL are responible for that mp3. WINNER!

I'm not sure which is scarier...

[laughingcoyote]

The fact that someone actually is trying this, or the fact that I'm half-afraid it might work.

Let's all hope not.

Re:I'm not sure which is scarier...

[meringuoid]

I'm actually quite glad of this. The outcome of this case will determine just what is and what is not enforceable in an EULA.

For instance, how about that bit about not disassembling, decompiling or reverse-engineering software that's in so many EULAs? That's the same kind of thing as this 'not use in spyware research' clause. If the one is unenforceable, then is the other one too?

Re:I'm not sure which is scarier...

[dorkygeek]

Depends on how judges of future cases interpret the finding of this case.

Re:I'm not sure which is scarier...

[Jekler]

That whole "no taking it apart" section of EULAs I always thought was horse crap. I should be able to disassemble, examine, rebuild, and reverse engineer ANYTHING I buy. I don't care if I want to analyze a loaf of bread, my VCR, or my software. Software should not be in a special category that specifies what I'm allowed to do with it after I buy it. If I want to use a toothbrush to scrub the toilet, godammit I will. If I want to use my finance software to keep track of my urine count I will. They can tell me how it was intended to be used, but don't tell me how I must use it.

Re:I'm not sure which is scarier...

[rawwa.venoise]

Anyway, there is a easier way to defend the anti-spyware guys. Since this crappy EULA says "it is forbidden to ..." Then you simply classify this crappy as spy-aware, no analysis needed ... as simple as this ...

Re:I'm not sure which is scarier...

[Nuskrad]

In the UK at least, you're granted a legal right to do this, even where the EULA prohibits it.

Re:I'm not sure which is scarier...

[Sierpinski]

That's one thing I never really understood. Historically, its never been the case (legally at least) where just because you write it down and make someone agree to it, it becomes legally binding. If I put in the EULA for software that I wrote, that if you click OK and install this software, you immediately forfeit all rights to your house, all cars, and all cash assets to me, you know someone would just click through that without reading, but of course they wouldn't be legally bound to give me their assets. Any court in the country would overturn that, which just goes to show, just because you write something down doesn't make it legally binding.

If I got you to sign a paper saying I could beat the snot out of you, and a police officer walks by during the act, what do you think said cop would say if I said "Its OK officer, he signed a waiver saying I could do this to him." Its just ridiculous.

Congress should outlaw EULA agreements altogether, even the part that says 'If this breaks we aren't responsible.' They wrote the software saying that it works, and if it breaks, they SHOULD be responsible.

Re:I'm not sure which is scarier...

[Danse]

Anyway, there is a easier way to defend the anti-spyware guys. Since this crappy EULA says "it is forbidden to ..." Then you simply classify this crappy as spy-aware, no analysis needed ... as simple as this ...

The real trick in that case will be actually finding the applicable EULA and associating it with the piece of software on the user's computer. I don't see that as a feasible solution.

Re:I'm not sure which is scarier...

[Sheepdot]

I think it was like Gateway vs. Phoenix or Compaq or something like that where it was found that reverse-engineering software was not illegal. I also don't think reverse-engineering hardware is illegal either, but building something might break patent law.

Re:I'm not sure which is scarier...

[Hosiah]

how about that bit about not disassembling, decompiling or reverse-engineering software

Yeah, it's gotten to the point where, if I can get the package open and the disk out without seeing an EULA, I reverse-engineer it on autopilot. Like I got another AOL disk in the mail. No EULA on the envelope! No EULA on the disk! So I mounted it in Mandriva and had a gander at the AOL .exe binaries in Emacs using hexl-mode. Damn sorry sight it was, too. Written in MS Visual C++, only about two error-checks in the installer (each of them overflows), compiled with no optimization at all. Perhaps I'll toss it through the nasm decompiler on Slackware when I'm bored. No, I don't know who this "AOL" outfit is or why they would send me disks, but I assume that if it wasn't mine to abuse, they (a) would put a label on the front telling me what I can't do with it, or (b) wouldn't mail it, unbidden, to my house.

Re:I'm not sure which is scarier...

[PickyH3D]

They're not really the same things. You could disassemble/decompile/reverse-engineer for much different reasons that spyware research.

I think everyone agrees that spyware is against the best interests of a user, regardless of whether an EULA was displayed to them or not. At the same time, spyware research could be what the poster said--"I saw it on a friend's computer." It doesn't even really need to be researched, but then again, this is a court, so define "research."

I've seen so much spyware on my friends' computers that I can just see the EXE names and spot them now (though I google the exe name just in case they're anti-virus crap that is horriblely named). Now, I don't think that would be legitimate grounds for adding to a list of detected spyware, legally, but then again, why not? As long as I am not stiffling my competiton (anti-competitive) with this (i.e., Microsoft using their spyware detection to say Firefox is spyware), then isn't the product maker to say what fits their definition of spyware?

It will be interesting to see how this plays out though. It all depends on the judge. Is he an idiot? Or does he respect the fact that users should have the ability to make decisions for themselves (note: The EULA would probably prevent me from helping my friends remove their program, uh, legally). For that alone, this case should be dismissed and the EULA forced to remove that clause.

Re:I'm not sure which is scarier...

[Anonymous Coward]

If I got you to sign a paper saying I could beat the snot out of you, and a police officer walks by during the act, what do you think said cop would say if I said "Its OK officer, he signed a waiver saying I could do this to him." Its just ridiculous.

Well if you just said "Its OK officer, he signed a waiver saying I could do this to him." that is one thing.

But if you were to actually show him the signed waiver that's another thing entirely.

Simply amazing the effect that signed pieces of paper (documents) can have upon bureaucrats and their little thuggish minions.

Re:I'm not sure which is scarier...

[_Splat]

If it's patented, you wouldn't need to reverse engineer anything. When you get a patent, your invention becomes public. In exchange, you're granted the legal right to control who uses it.

Re:I'm not sure which is scarier...

[timmyf2371]

It's more a case of a court ruling particular clauses as "unreasonable". Contracts like that are enforcable, however the validity of each clause is dependant on whether a court ruled it as unreasonable or not.

Re:I'm not sure which is scarier...

[hetfield]

"Congress should outlaw EULA agreements altogether, even the part that says 'If this breaks we aren't responsible.' They wrote the software saying that it works, and if it breaks, they SHOULD be responsible."

Right, like this license?

This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU General Public License for more details.

Re:I'm not sure which is scarier...

[Fulcrum of Evil]

Right, like this license?

That's not a EULA, it's a distribution license. You don't have to accept it to use the software it's attached to.

Re:I'm not sure which is scarier...

[Anonymous Coward]

If I got you to sign a paper saying I could beat the snot out of you, and a police officer walks by during the act, what do you think said cop would say if I said "Its OK officer, he signed a waiver saying I could do this to him." Its just ridiculous.

Not a fan of reality TV are we?

Re:I'm not sure which is scarier...

[Sloppy]

Congress should outlaw EULA agreements altogether..

No, they shouldn't. But states should outlaw nonconsensual "agreements," where someone is exposed to an agreement after the sale as a seperate transaction, and told that if they decline the second transaction, it somehow invalidates the first. They should also refuse to enforce shady agreements, where the buyer and seller don't even have a record or proof that the agreement exists. Clickthrough EULAs are example of both of those kinds of slime.

Consensual and non-shady contracts, though, need to remain legal. I'm talking about the kind of contract that everyone is familiar with: where you know the rules in advance, and take the sobering and weighty action of signing your name, and then you get something as part of the deal.

Re:I'm not sure which is scarier...

[Sierpinski]

No, they shouldn't. But states should outlaw nonconsensual "agreements," where someone is exposed to an agreement after the sale as a seperate transaction, and told that if they decline the second transaction, it somehow invalidates the first.

This is actually exactly what I was talking about. The sort of 'You opened the software so that means you agreed to.... '

Thanks for the comment, I realize the difference, just didn't express it that way.

Re:I'm not sure which is scarier...

[chgros]

Congress should outlaw EULA agreements altogether, even the part that says 'If this breaks we aren't responsible.' They wrote the software saying that it works, and if it breaks, they SHOULD be responsible.
In the name of all software developers, PLEASE don't do that! Do you really want a software malpractice insurance?

Does it work against FBI agents too?

[SuperBanana]

According to the EULA, SpyMon can not be used in 'anti-spyware research,' and detecting it is therefore a violation of it.

Anyone remember those MOTD's on pirate-software FTP sites giving us a pseudo-legal-brief about President Clinton signing some law, and then "FBI AGENTS YOU CANNOT ENTER THIS SITE"?

Re:Does it work against FBI agents too?

[Anonymous Coward]

Hehe. It used to be the same on the pirate BBS scene before the internet ISPs really took off -- you would dial a board and be met by a message that said something like "If you are a member of the police, customs or any anti-piracy agency you are forbidden from accessing this system".

I suspect that few of these sysops went on to become criminal masterminds or lords of the underworld -- I can just imagine their crack houses now -- "NO DRUG OFFICERS ALLOWED, BY ORDER OF THE MANAGEMENT"

Re:Does it work against FBI agents too?

[Kjella]

Anyone remember those MOTD's on pirate-software FTP sites giving us a pseudo-legal-brief about President Clinton signing some law, and then "FBI AGENTS YOU CANNOT ENTER THIS SITE"?

They never stopped, FTP simply lost importance. IRC fserves used to have them too. Websites, DC++ hubs, eMule hubs, WinMX shares as well. It's funny, I've had people present me that and then ask me if I'm a cop as well. Even after sending them this and this they still think it is for real. I guess it's some kind of mental self-defense, denial or whatever that makes them go LALALALALA I can't hear you.

Kjella

Re:Does it work against FBI agents too?

[welshsocialist]

I remember this too. According to Snopes and this blog post, these warnings - boiled down to the simplest level - told law enforcement and other groups that going after them was a violation of non-existing 1995 Internet privacy law signed by former President Clinton.

It isn't true.

Re:Does it work against FBI agents too?

[Anonymous Coward]

It doesn't matter if such a statement is legally enforcable or not as long as there is a halfway decent chance some FBI agent thinks it might be. It would probably be worth it even if it merely delayed an FBI agent while he checked with his superior about whether he could ignore such a notice.

Re:Does it work against FBI agents too?

[hey!]

Yep.

Goes with those plans for a home made bomb shelter made out of 1/4 plywood, with the handsome concentric ring paint job, and the radio beacon warding off attackers by broadcasting "Bombs away!"

Re:Does it work against FBI agents too?

[Anonymous Coward]

Would it be legal for an officer to go to a party/wedding etc, and search it for illegal contraband just by not telling anyone at the party in a private house that they are an officer, or that they are not on the guest list?

How is this different? The website says no police officers allowed, the police are entering without permission and searching without a warrant. In the case of a drug bust with a cop that has a wiretap, the police would have probable cause and a warrant. In the case of a cop visiting a BBS, they're accessing a comptuer system without permsission, which is a crime itself, and they don't have a warrant to search the premises without permission.

So even though it sounds stupid, why is it legal for the cop to search anyway?

Re:Does it work against FBI agents too?

[antime]

Some people also still believe it's legal do download whatever you want as long as you delete it within 24 hours. It really makes you wish you could smack these people over the head over the net.

Re:Does it work against FBI agents too?

[DavidTC]

What people are missing is that it is illegal to access someone's computer if they have told you not to. This is a violation of various computer access laws.

Ergo, it is perfectly sane to put up a message banning whoever you want, and yes, that does have legal enforcablity. I don't know what this has to do with an Federal privacy bill, it's state laws that ban 'unauthorized access'.

Think of it this way: Bars are normally open to the public. People go in and out at will, and so can police.

Private clubs, with a bouncer? They have to ask to come in, and they can be told no, and then they don't get to wander in and look around.

This, of course, doesn't stop them from entering if they have a search warrant.

I don't know why people would think the police have some sort of special right to poke around online on a system they are explicitly unauthorized to use.

Re:Does it work against FBI agents too?

[TGK]

No, I don't remember that - because I have never been to those sites. I do not now, nor have I ever participated in software piracy or any software piracy affiliated organization.

I want to be absolutely clear on this because if anyone were to read this I would want them to know that I am not a software pirate. I also support the war on terror, the president's agenda, and the Republican Party.

Please don't send me to Gitmo.

Re:Does it work against FBI agents too?

[bl00d6789]

While this may apply to police, I'm not entirely sure that it would apply in a private setting. While I totally disagree with the lawsuit being brought, I think it's possible that it may hold up. A proper comparison, as opposed to prostitutes asking johns if they're undercover cops, would be a business posting a sign on their door stating that no reporters were allowed inside for the purpose of reporting on their business. A reporter enters, collects information, and uses it to write a potentially damaging article about the company.

Does the company have a right to sue the reporter (or even have him arrested for trespassing)? I think that, since this does not involve a police officer "protecting and serving", that the case just may hold up as a private, civil matter.

Re:Does it work against FBI agents too?

[MrScience]

Fascinating. This compelled me to search for the fake statute by number... after ignoring the debunking sites, you get a lot of fringe pages that are trying to get away with something.

Re:Does it work against FBI agents too?

[conJunk]

IANAL, but i can predict how this goes: the courts would (IMO bloody obviously) rule that blanket declarations of law enforcement/pygmies/blondes are not allowed are invalid - such disallows must be specific, "*you* are not allowed"

Re:Does it work against FBI agents too?

[Loki_1929]

"They never stopped, FTP simply lost importance. IRC fserves used to have them too. Websites, DC++ hubs, eMule hubs, WinMX shares as well. It's funny, I've had people present me that and then ask me if I'm a cop as well."

I always wondered if 18 U.S.C. 1030 would make sense as a defense. After all, if you define the scope of those you allow to access something clearly, and someone outside that scope goes on to access the information, would they or would they not be in violation of 1030 (2) which makes it illegal when one "intentionally accesses a computer without authorization or exceeds authorized access"? It'd be an interesting case to defend.

Re:Does it work against FBI agents too?

[DavidTC]

I have no idea why they'd say that. Discrimination against classes of people is perfectly legal as long as those classes are not protected under the law, or a weasely attempt to ban those classes without explicitly saying so.

In fact, there are already people that discriminate on profession, although it's usually 'who can get in', verse 'who canno get in'. For example, you want to join a policeman's union, you have to, duh, be a policeman.

If you said 'People with red hair cannot view this site', because you dislike the Irish, you're on shakey legal ground because, while hair color is not a protected class under various civil rights statues, you are trying to ban a protected class by banning that.

However, 'policeman' doesn't translate to any protected class I can imagine. It is perfectly legal to discriminate against them as a group, to say 'policemen can go here, but not here, and teachers can go here, but not here'.

Now, of course, if you're setting rules for groups, there's always the argument that someone didn't know you were talking about them...which is why statements like those pretty clearly say anyone involved in law enforcement is banned.

Re:Does it work against FBI agents too?

[Loki_1929]

Perhaps, but doesn't 18 USC 1030 say essentially the same thing?

Wow, impressivly smart

[Anonymous Coward]

Damn, thats a really good idea on their part. Hopefully the judge just says that its malicious software and throws out the case or something.

I dont think they'll win

[bjason82]

This kind of thing is not likely to stand up in court. Spyware has been proven to be a malicious type of software that voilates one's privacy, therefore I would be shocked if the courts find in favor of the spyware maker. The spyware maker might have thought it was clever adding that clause in their EULA, but essentially what they've stipulated was people cannot investigate how their software works in order to prevent it's unwanted installation on to one's system. Not likely to stand up in court.

Re:I dont think they'll win

[checkup21]

But this undermines your freedom of doing whatever you like. If you install a shareware with spyware attached, and they inform you with the EULA, it is your own freedom to do so. In fact "You wanted the Software".

Re:I dont think they'll win

[shawb]

Maybe, if this was actually spyware. Okay, it does "spy" on the user, but it is monitoring software. It gets installed on the computer for the express purpose of monitoring another user's activities, such as a boss monitoring their employees or a parent monitoring what their children are doing. This software has to be purchased and intentionally installed, it doesn't just get surreptiously installed along with some screen saver, video game or internet cursors.

I personally think this is generally morally reprehensive if the user is not notified of the logging software, but the owner of the computer is probably within their rights to install this on their own property.

Re:I dont think they'll win

[bogado]

The difference is who they report to, if the spy software was recording on the same computer a encripted file that has some key that only the person who installed the software could open. Also it should be able to uninstall the program (maybe with a password of the original installer). And I would expect that other user would have some kind of warning that they are being monitored.

If this software is being selected as spyware it probably reports to the vendor an undisclosed number of information collected on the computer. It is hard to uninstall and it tries to hide himself in the computer. Those are all inacceptable, even if it do spy for the original installer also.

Re:I dont think they'll win

[Coeurderoy]

Well DMCA definitivelly forbid you to dissasemble, examine, etc... any (definitively unwanted) DRM code.
So it is very probable that if the company can somehow pretend that they are doing "marketing" they could very well win.

After all no user of Microsoft software actually has any right on his/her computing equipment.
Once you've installed the "mother of all virus and spyware" (or forgot to clean your computer) you anyway relinquished any right you might think you have on your computer.

Actually I do kind of hope that they win, it could change the impact of intelectual laziness on computer users (people that pretend that they do not have the time/possibility/etc to switch from M$ would either be made totally unable to work on the Internet (and therefore be effectivelly removed from any decision making process) or have to bit the bitter apple, and shake their lazy a...)

Cheers

Re:I dont think they'll win

[shawb]

It looks like this software can send the information to another computer (not SpyMon's servers, but to a computer of your choice when installing.) Perhaps they classified it as spyware simply because of attempts to make a network connection.

Then again, this was all according to the manufacturer. There is a chance that they charge, and ALSO have spyware bundled in. If that's true, then they are truly evil. Buy if that's true, then I don't know if the judge would have even bothered hearing the case. Although it could just be a bluff for an out of court settlement.

Re:I dont think they'll win

[RodgerDodger]

The assumption here is that the owner of the machine installed the monitoring software.

There are some basic scenarios here: 1) The owner installed the monitoring software. In this case, they knew about it already. Big deal. 2) The owner _wasn't_ the person who installed the software. In this case, it's spyware.

A closed-circuit camera may be a monitoring device, or it may be a tool for spying. It depends on if you point it at your yard or your neighbor's bedroom (you know, the one where the attractive blonde always changes without closing the curtains first).

Re:I dont think they'll win

[F_Scentura]

"the owner of the computer is probably within their rights to install this on their own property."

And they can be free to add it to their "ignore" list. Any keylogging and SPYING applications should show up on a virus/malware scan.

Re:I dont think they'll win

[bill_kress]

I agree, they won't win. What interests me is HOW they won't win. It's possible that the courts will limit the power of EULA's. YAY!

Of course with our brain-dead, corporate-loving system it's just as likely that they will say something useless like "Your spyware is stupid so you don't have any rights" rather than trying to understand how our laws could make such a thing possible in the first place and fix it.

Re:I dont think they'll win

[legirons]

It gets installed on the computer for the express purpose of monitoring another user's activities, such as a boss monitoring their employees or a parent monitoring what their children are doing.

So how is that not spyware?

Or to put it another way, if someone has enough access rights on a computer to run anti-spyware tools, then they're administering that computer, and have a need to know what's running on it. If the boss, parent, FBI, or whoever installed the spyware was the legitimate admin of the computer, then they could have chosen not to allow the user to run anti-spyware and it wouldn't be an issue.

But that's not up to the spyware/anti-spyware companies to decide, it's a security privileges thing. The anti-spyware should give correct information regardless, to whoever is running it.

I can see it now...

[bravehamster]

So, the next virus I get on my computer will have embedded in it's source code: "By reading this source code, you agree that W32.SonyRootKit.C will not be added to any antivirus definition lists or be recognized by any heuristics."

I can just see the coder in his dimly lit basement cackling while rubbing his hands in glee: "I have you now Norton!"

Re:I can see it now...

[vettemph]

"By reading this t-shirt, you agree to pay me $20.00"

  I'm going to make a fortune at the mall today!

Re:If it looks like a duck and sounds like a duck.

[Anonymous Coward]

Or in this case:

If it looks like dick, and sounds like a dick, then it must be a dick.

Detection w/o "Research" on the product

[Anonymous Coward]

Although the EULA does state the defendant must prove in court they didn't use the accused spyware program in research, isn't it possible that the spyware detecting application made (exclusive?) use of heuristic profiling to detect the actual spyware app?

Prove my invisible friend ISN'T Jesus.

[CosmeticLobotamy]

If you do produce a program that will affect this software's ability to perform its function, then you may have to prove in criminal court that you have not infringed this warning.

Is it legal for contracts to include conditions that are physically impossible to do? If so, my next bit of software is coming with a "If you can't prove you didn't make copies of the software, you owe us for as many copies as could possibly have been made between the time you first run the program and the time we sue you." Since nobody reads those things anyway.

On a mostly unrelated note, I wrote a program that shows funny pictures. It's awesome, and it's only 1 cent, for... processing purposes, if anyone's interested in a download.

Re:Prove my invisible friend ISN'T Jesus.

[michaelhood]

Contracts are invalid if their execution would require someone to do something illegal or impossible.

Re:Prove my invisible friend ISN'T Jesus.

[dorkygeek]

Depends on who has the burden of proof in such cases. If an EULA is handled like a regular contract, at least in my country, the party which makes the claim also carries the burden of proof.

Re:Prove my invisible friend ISN'T Jesus.

[Anonymous Coward]

If you do produce a program that will affect this software's ability to perform its function, then you may have to prove in criminal court that you have not infringed this warning.

That's meaningless. It says, do this, and you might find yourself in criminal court. Or you might not. Or the sky might be green. It's legalese BS just like email disclaimers that have no force of law.

Re:Prove my invisible friend ISN'T Jesus.

[Shano]

IANAL, but in general, contracts can legally include whatever terms you like. Whether they are enforceable is a different question altogether.

Most real contracts (and a lot of EULAs) have a clause stating that if any part of the contract is found to be invalid or unenforceable, the remainder of the contract still stands. This is legal, and standard practice.

The downside is that companies tend to put in all the terms they can legally enforce, and anything else they think they might get away with if not challenged. So we end up with these long, tedious contracts that are perfectly legal, but mostly not actually applicable.

Re:Prove my invisible friend ISN'T Jesus.

[Tim C]

Not to mention that breach of contract (or EULA) is a civil matter, not a criminal one.

Re:Prove my invisible friend ISN'T Jesus.

[MysteriousPreacher]

I'm not sure if this was an EULA or a warranty agreement but I remember seeing one where it had a note that said if any of the conditions were illegal in your country/state then the legal ones will still be valid.

Re:Prove my invisible friend ISN'T Jesus.

[blorg]

if any of the conditions were illegal in your country/state then the legal ones will still be valid.
That's a standard clause in almost all contracts and is generally upheld; IANAL but AFAIK it would generally be upheld even if it isn't specifically in the contract.

Re:Prove my invisible friend ISN'T Jesus.

[Arandir]

Most EULAs are not contracts. Most lack consideration and any meaningful form of assent. A mouse click to "agree" to waive some rights in return for nothing is not a contract.

By purchasing the software you have gained the legal right to utilize the software (at least in the US you have). Thus, a "contract" cannot give you that right as consideration, because you ALREADY possess it. Also, the act of utilizing the software, including the act of installation, cannot be used as evidence of assent.

Imagine you buy a new Toyota Prius. You've handed over your money and received the keys in return. Then you see a notice on the driver's door, saying that you may not service the vehicle yourself, and that you signal your acceptance of this term by opening the door. Would such a notice be legally binding? Of course not! So what makes software any different?

Re:Prove my invisible friend ISN'T Jesus.

[michaelhood]

Sorry, I should have said a clause. One clause's validity (or lack thereof) does not jeopardize another in the same contract. They will be evaluated independently.

Next Up

[kertong]

In CounterSpy's EULA: "This CounterSpy software cannot be used for anti-anti-spyware research or litigation."

in the end more is said then done.

[Anonymous Coward]

last time i checked the legality of eulas was rather questionable, and unless the spyware company makes it clear that there is a eula you have to agree to, then its about as legal as strapping on an extra page to a contract to change it how you want it to.

Anyone up for putting an EULA on their computers saying that anyone/thing using their computer in a destructive, invasive or annoying means isnt allowed to?

Re:in the end more is said then done.

[Mistshadow2k4]

Actually, that's really not such a bad idea, but you'd need software to deliver the message to anyone trying to do just that, not just something that blocks them from connecting with you.

And, agreed, this is bullshit. But this isn't the worst I've heard. I've also read that some spyware companies are leaning on the anti-spyware makers to exclude them from their detection lists. Unfortunately, I don't have any links to prove it now (it was about 5 weeks ago I read that, I think). I can't say it's true, but I'd actually be surprised if this hasn't been happening for a while. Think about it.

Re:in the end more is said then done.

[guttergod]

Oh yes! I'll just incorporate it now...

This is the EULA för my computer.

By accessing any information stored in my computer, you forfeit your life to me and shall immediately cease and desist your current life and report to me for a life in permanent slavery.

EULA for this post, read this first!:
By reading any part of the above post, you forfeit your life to me and shall immediately cease and desist your current life and report to me for a life in permanent slavery.

- Oh, really? You didn't read the post EULA first? *evil laughter*
Awaiting the slaves... awaiting the slaves....
- Oh bugger, 1000000 nerdslaves, I obviously didn't think this through...

Heuristics ? Or the admit in the EULA

[tines]

First: they almost admit in the EULA that is a spyware product. Who the fuck else would put such an idiot line in the EULA. Second: the antispyware company might have used some sort of heuristics. No install required. I would really like to see this go in court: isn't there a limit on the kind of shit people put in that EULA ?

Re:Heuristics ? Or the admit in the EULA

[DrEldarion]

First: they almost admit in the EULA that is a spyware product. Who the fuck else would put such an idiot line in the EULA.

Did you even look at what the program is, or did you just post a kneejerk reaction without even looking into the matter?

The person installing the software KNOWS that it's used to spy. It's computer monitoring software - you know, the kind that bosses have installed on their workers' computers to see if they're actually working instead of screwing around on company time and property. That's the entire POINT of the software, it would be silly for anyone to claim otherwise.

Re:Heuristics ? Or the admit in the EULA

[Nit Picker]

So jealous wife slips program on husband's computer to check up on him. Husband doesn't know about program, much less agree to EULA. Husband suspects something about behavior of machine, either due to this program or another, and sends suspect files to anti-spyware company, which detects it. Who has violated EULA?

EULA's too far?

[Anonymous Coward]

This seems ridiculous to me... shouldn't there be a limit on how far EULAs can go? Or is there one that I'm not aware of?
Can I make a EULA that says you must pay me $1 million within a week or I can take everything you own? It seems very exploitable...

Re:EULA's too far?

[speculatrix]

"click-wrap" EULA on this message:
By reading any part of this message, you agree to my license conditions which have just cost you US$1M.
Any attempts to deny this EULA will cost you a further US$1M.

Re:EULA's too far?

[Anonymous Coward]

read that aloud to me as I cant read...

attempting to read aloud to me has just cost you $US1M.

Re:If it looks like a duck and sounds like a duck.

[jkrise]

Just a thought... what if Microsoft started suing the anti-virus firms over calling malware names? What will we call the viruses, worms, spiders and ticks? AIDS? SARS? STD? I think 'non-user-non-MS-unintentionally-installed-softwar e' is too long...

enforcability ?

[tklive]

This would be a good case to find out about the enforcabilities of an EULA .

have any others been tested in courts ?

Re:enforcability ?

[barefootgenius]

I don't really know, but I think the threat of a lawsuit kills most lawsuits. I mean has anyone challenged this in court?

"1.3 Device Connections. You may permit a maximum of five (5) computers or other electronic devices (each a "Device") to connect to the Workstation Computer to utilize one or more of the following services of the Software: File Services, Print Services, Internet Information Services, and remote access (including connection sharing and telephony services). The five connection maximum includes any indirect connections made through "multiplexing" or other software or hardware which pools or aggregates connections. This five connection maximum does not apply to any other uses of the Software."

I know what they mean, but couldn't that be turned around to mean I can only connect to five computers on the internet? Worst of all, doesn't it make file sharing illegal to run on a XP Home computer as you are providing an information service?

And thats from the XP Home EULA (http://www.microsoft.com/windowsxp/home/eula.mspx )

Where's Al Qaeda when you need them?

[leereyno]

CYA Notice to federal agents and other interested parties:

The subject line of this post is intended to be humorous. It is not an endorsement of terrorism nor is it intended to encourage anyone to commit any illegal act.... except of course for jaywalking, sodomy, and mopery with intent to loiter.

The llamas responsible have all been sacked.

Lee

Don't agree to eula!

[pawstar]

Em. I don't get it. Who says the the company has to agree to the eula to look at it? If the spyware company declines the eula agreement they are not bound to it and as a result the proggy is not installed. How does that restrict they spyware company from analyzing the binaries present in the setup program? Decompress the archive and create a fingerprint done!

Re:Don't agree to eula!

[wpiman]

Perhaps the spyware program #1 just thinks that program #2 is spyware since it's fingerprint looks remarkably similar to something else. In this case- they didn't violate the agreement at all.

Re:Don't agree to eula!

[metricmusic]

Or they could have possibly anaylyzed the spyware program on a machine that already had it installed. If teh program was already installed when you got to it, you never clicked 'I agree' to the EULA did you?

Re:Don't agree to eula!

[gregmac]

Or they could have possibly anaylyzed the spyware program on a machine that already had it installed. If teh program was already installed when you got to it, you never clicked 'I agree' to the EULA did you?

Does an EULA apply to a user, or the whole company?

What's to stop the anti-spyware company from having someone who's job is to install spyware, and agree to the EULA's? They could then give the computer to the development team, and someone can write detection for it. No one on the development team agreed to or even saw the EULA..

Re:Don't agree to eula!

[Anonymous Coward]

Does an EULA apply to a user, or the whole company?

Under your scenario, I would suspect that an EULA would apply to the company.

However, suppose one of your "clients" comes to you and says "Help! I have spyware on my machine!" You then look at your "client's" computer and examine it. You then never installed or ran the spyware, and are not subject to the EULA.

Re:Don't agree to eula!

[booch]

No, a EULA applies to the company if you are installing the software on behalf of a company.

Re:Don't agree to eula!

[NerdMachine]

To download the software, you need to agree to the EULA.

Other great EULA small print

[Anonymous Coward]

Section 6783.

You agree that in using this Software, You give Us the right to your first born child.

Section 6784.

You agree that in using this Software, you will never hit the "g" key on your keyboard between 4:50AM and 3:15PM. This clause will survive termination of the Agreement.

Section 6785.

You will never call the Software a Piece Of Shit in public or in private.

Re:Other great EULA small print

[leuk_he]

Section 6786

Upon termination all this software should be returned to the place you got it from. Your soul should be included by this.

Section 6787

By clicking ok the holder of this contract will waive the requirement to sign this eula in blood.

All in font "small beezelbub" that the lameness filter in /. fails to let trhough

Re:Other great EULA small print

[Anonymous Coward]

i hate your piece of shit software, and because i'm a ggggggggggggggeek, you're welcome to my first born child that i will never have...

<shows 'em>

Re:Other great EULA small print

[Anonymous Coward]

Section 6788

All your base are belong to us.

Re:Other great EULA small print

[kocsonya]

> Section 6785.
>
> You will never call the Software a Piece Of Shit in public or in private.

It is not funny at all. It is, sadly, reality. EULAs can and do state that you can not compare the software to other offerings, can not benchmark it and can not publish negative opinion on it. Not calling it a piece of shit in the privacy of your home is not allowed as such, it just simply can not be monitored effectively yet.

It's not used in anti-spyware-research.

[Anonymous Coward]

It's used for target practice in spyware-asskicking.

Re:Ya know...

[Sockatume]

Right, because nothing convinces people to get on yourside like blowing them up.

Unenforceble I'd Say

[amelith]

What's next? Passing a note to a bank teller "By reading this note you have agreed to let me rob your bank and not press the alarm button"?

EULAs are becoming increasingly cluttered with unenforceable and in cases downright silly things. With any luck a few frivolous lawsuits might see some of them struck down.

Ame

Re:Unenforceble I'd Say

[Anonymous Coward]

I tried a note similar to that on this great looking babe at a bar. Note read: By reading this you agree to have sex with me and not to later claim refusal or file for child support. First she has this kneejerk reaction and then when my eyes clear there are these four huge guys standing over me who say they are from the pest patrol. I have to cut this short because I am exhausted from typing with a pencil held between my gums.

Re:Unenforceble I'd Say

[theonetruekeebler]

It's more like

• By reading this note the teller agrees that the Funds Recovery Action undertaken by the Funds Recoverer is not a bank robbery.
• Teller agrees to withdraw and surrender such funds as the Funds Recoverer demands.
• Teller agrees that the Funds Recoverer is not responsible for any financial loss resultant from Teller's participation in the Funds Recovery Action.
• Any attempts at funds recovery undertaken by Teller or his or her employeer against the Funds Recoverer is expressly disallowed as a derivative work of this Funds Recovery Action.
• Any video recordings of the Funds Recovery Action are expressly disallowed as a derivative work of this Funds Recovery Action and are the property of the Recoverer.
• Teller agrees to fund all legal and medical expenses incurred by the Recoverer resultant from the Teller's refusal to cooperate in the Funds Recovery Action.
• Teller agrees that any violation of this Agreement, including refusal to accept the Agreement, shall entitle the Recoverer to financial compensation of twice the amount demanded in the original Recovery Action.
• Now put the money in the bag and lie down on the fucking floor.

Don't need to

[JanneM]

They don't need to be able to win. All they need is to have enough of a case to threaten them with long, costly litigation - and once the expected cost of defending themselves is greater than the cost of caving in, most businesses will cheerfully cave. In fact, for publicly traded companies you can make a decent case that it's their duty to do so.

Re:Don't need to

[Hortensia Patel]

once the expected cost of defending themselves is greater than the cost of caving in, most businesses will cheerfully cave. In fact, for publicly traded companies you can make a decent case that it's their duty to do so.

Except that if a clause like this were upheld, all the spyware makers would start adding similar clauses in short order, and anti-spyware makers would be out of business. It shouldn't be too hard to explain this to shareholders.

Re:Don't need to

[No Such Agency]

Christ, you could probably convince OTHER anti-spyware companies' shareholders to set up a legal fund for these guys, with that logic.

Re:Don't need to

[pla]

Except that if a clause like this were upheld, all the spyware makers would start adding similar clauses in short order, and anti-spyware makers would be out of business.

Nope. Just this one.

Because, a really obvious response exists - The anti-spyware makers just need to add the same clause to their EULA, without the "anti" (or with an extra one); then, the spyware makers would have no legal way to determine if a given antispyware product could detect them.

Of course, that wouldn't hold up either, but I say this on the condition that RetroCoder actually has a case.

Re:Don't need to

[Kupek]

There's no need. This lawsuit looks so cut-and-dried in favor of the spyware detection company that a law school student could come up with most of the defense as a homework assignment over the weekend.

Re:Don't need to

[macz]

Sunbelt can afford it. They make tons of useful,legitimate software which sell fairly well. Spymon thinks that this is David vs Goliath, but it is more like the Palestinian kids vs Israeli tanks. This may be the first loose thread in the EULAopoly that sw companies think they wield.

Re:Don't need to

[JanneM]

Doesn't matter, in the general case, if they can afford it. If fighting it loses them more money than going along, then going along it is. Shareholders (the owners) are generally not in a company for the long haul. If the share price is going well (comaperd to market standards) over the next year, it's fine. If not, it's not. When the owners/investors don't give a damn about the long-term prospects of the industry, then neither can the company.

Re:Don't need to

[legirons]

Except that if a clause like this were upheld, all the spyware makers would start adding similar clauses in short order, and anti-spyware makers would be out of business.

And operating system EULAs would have clauses forbidding spyware research, so all spyware companies go out of business.

Yes, it's all madness. Life is so much simpler when your software doesn't have EULAs.

Re:Don't need to

[bezuwork's friend]

It will work for a while, but sooner or later, they will hit against someone who will fight it out.

Remember the Russians who were DDOSing companies and extorting money? One guy was using zombie networks to target gambling companies for 100K or less. One guy decided to not pay and hired someone to create a system that could handle the DDOS and filter out the legitimate traffic. They did finally create a system that beat the Russians. One guy finally decided to fight back and the result was a new security company that could do it for all the victims.

I can't imagine a jury or court finding the guy liable for the money spent defending his company against extortionists. It seems it would be valid under the business judgement rule.

No shame!!

[cra]

Have they no shame!??

The spyware people should be treated like programming commands and scripts: "Carried out and executed".

In general, I think the USA should change its name to "SueSA". When are people going to take responsibility for their own actions? If someone walks on my sidewalks and trips in a hole in it, it's their own g*dd*mn f**ing fault for not watching where they are going, not mine.

Re:No shame!!

[Anonymous Coward]

In general, I think the USA should change its name to "SueSA".

That was my idea! We're going to face off in court over this...

Re:No shame!!

[RevMike]

If someone walks on my sidewalks and trips in a hole in it, it's their own g*dd*mn f**ing fault for not watching where they are going, not mine.

Well, that all depends. If you have a sidewalk you have a duty to keep it in good repair. So it hinges on whether you had actual or implied notice that the sidewalk was damaged and had you taken steps to warn others of a dangerous situation.

When you buy a piece of property you also purchase with that certain duties, one of which is to maintain the sidewalk on that property. You can't pick and choose what responsibilities you will have, taking title on the property confers those responsibilities.

Re:No shame!!

[cra]

I admit it wasn't the best example possible. Perhaps a better one would be if they entered my lawn and stepped on a rake, puctured their foot and smacked their face on it. Could they sue me? In the USA, probably for everything i own. Where I live? Not if hell froze over and Satan himself passed out free rides on his personal snowsled. There are many things I like about the USA, and I'd definately like to visit again, but the mentality of suinng others for your own mistakes/stupidity etc really scares me.

Re:No shame!!

[Anonymous Coward]

Except that you don't actually own the sidewalk, and if you and a group of friends were obstructing it, could be forced to move under penalty of arrest. So you have the responsibilities of ownership, but not the associated rights. You can be sued or fined. But you can't have a picnic or park your car there.

Re:No shame!!

[RevMike]

Except that you don't actually own the sidewalk, and if you and a group of friends were obstructing it, could be forced to move under penalty of arrest. So you have the responsibilities of ownership, but not the associated rights. You can be sued or fined. But you can't have a picnic or park your car there.

Your title or lack there of to the sidewalk is something that can be different from property to property. In some cases the municipality owns a certain amount of land from the centerline of the street out. In this case, you do not own the sidewalk, but you are forced to maintain the sidewalk in exchange for the use of that part of your front lawn which rightfully belongs to the municipal authorities. I'm personnaly in this situation, in that I have an extra 15 feet of front lawn that I don't own. In other cases you may own the sidewalk, but the municipal authority has an easement that allows the public use of that space. The big difference here is that, should the municpality decide to widen that road, you may or may not have right to compensation.

Re:No shame!!

[Anonymous Coward]

In general, I think the USA should change its name to "SueSA". When are people going to take responsibility for their own actions?

This is insightful?

How about trite?

Re:No shame!!

[sweetnjguy29]

Still a bad example. Even if they walked across your lawn, as a trespasser, and stepped on your rake, that punctured their foot, they could sue for it. And even more so if that trespasser was a child. I am not sure that there is any country around that would permit you to allow a dangerous condition on your land that could cause injury to a child to escape some sort of liability. This is true in most of the United States...but since I don't know what country your from...feel free to prove me wrong by citing a statute or a case :-). My example comes from the Restatement of Torts 2nd :-)

Re:No shame!!

[fair_n_hite_451]

There's also a limit to what a homeowner is expected to do to "maintain" the sidewalk. (Where I live, I don't own it, the city still does).
 
I am required to keep it free and clear of movable impediments - snow, gravel, etc ... but if it cracks and heaves, that's not my responsibility to fix, that's the city's.

Re:No shame!!

[vettemph]

What a great idea. I'm going to make a program called yourmanager.exe
(will run at my workplace, exe's don't run at my home computer)

Anywho, it will be great fun saying to fellow employee's: "Now execute yourmanager".

(-1, Offtopic)

Re:No shame!!

[RevMike]

Yeah, the exact rules and regs. are local in nature. In one place I lived, for instance, a tree root from a tree on city property caused a flag to heave. The city removed the root but I had to replace the flag.

Re:No shame!!

[OSXCPA]

I understand your anger. One item to note, it is the large lawsuits that make headlines. Those usually involve a large, litigious, ethics-impaired public corporation, or a gold-digging 'victim'. In my lifetime, I have known several people who had to resort to lawsuits over various claims - getting hit by a delivery truck speeding on a side-road, getting hit with broken glass from a promotional item because the restaurant giving the item away just stacked them on a third-partys' tray, and a case of medical malpractice which resulted in nerve damage to a newborn. The first one went to court, since the company refused to acknowledge that their employee was speeding or that he should have been watching for children playing on a residential side-street or should have stopped instead of dragging a five-year-old on the undercarriage of the truck for 200M. The delivery company paid a six-figure settlement and all medical and court costs. The second was settled out of court very quickly with a polite 'I'm sorry', a free meal and an all-expenses paid trip to the ER (not in that order). The last was also resolved out-of-court, in a mutually beneficial manner (the child got therapy and some cash, the hospital and doctors didn't have to pay punitive damages or see their insurance premiums rise due to an adverse court decision). Overall, the 'right thing' was done in all three cases, in my opinion.

Things have probably changed a bit since then, but... long story short, both parties to a given transaction need to be prepared to behave like civilized human beings. Corporations who treat people like objects, which have a price to be paid for damage and which therefore may be damaged at will if there is sufficient 'upside' need to be driven into oblivion and the managers held accountable. Likewise, individuals who look at large corporations, or other people as sources of revenue because some ambulance-chaser talked them into thinking they are entitled to a meal ticket because they got a scar need to be booted in the arse and sent packing.

US laws aren't the problem (note: except the USA Patriot Act, but that is new and still under challenge - our system of government allows stupid laws to be enacted, the courts can only review after they are in place and someone is contesting the law based on a conflict with his/her rights) - stupid and/or evil people are the problem.

Re:No shame!!

[Old Wolf]

In general, I think the USA should change its name to "SueSA".

Sorry, Bush has already changed it to YSM (Yoonard States o' Merka).

Re:No shame!!

[Dahamma]

Where I live? Not if hell froze over and Satan himself passed out free rides on his personal snowsled. There are many things I like about the USA, and I'd definately like to visit again, but the mentality of suinng others for your own mistakes/stupidity etc really scares me.

How is hell this time of year, anyway? I'm glad you could take some time out from your eternal torment to visit us - come back any time!

Re:No shame!!

[cra]

Where I live, children are (thank god) still to some extent allowed to injure themselves. A rake is something that can be expected to be found in any garden, and I am free to let it lying around as I wish. If the kids in the neighbourhood stepped on it I would never be sued. However, if I should happen to own a swimmingpool, there are strict and specific regulations about securing it so nobody falls in. I have to have either a fence with a locked gate, at least three feet high, or th epool have to be covered. I don't own a pool, so I don't know the rools about how much weight the lid should be able to carry.

Another example: I own several trees. (apples, plums cherries etc) If the "kids in the hood" should happen to climb one of them to get themselves a treat and happen to fall, I would not be responsible for any damage, ranging from a ripped pair of pants and a bruised ego all the way up to a broken neck or death. The trees are mine, and none of the kids have any business climbing any of them. By default you do such things at your own risk. Everybody knows this, and act accordingly.

I guess it boils down to this:
The americans should think a bit about how the rest of the world see them. The cases that makes the newspapers make you all look like greedy gold diggers, and that's the impression many people I have talked to have. Also, we are a people that in a way "look up" to the USA and take after it, kind of like a big brother. I sure as hell don't want it to come to a point where we also sue others for our own mistakes. If I sneak into my neighbours basement to grab a couple of beers and break my leg in his basement stairs in the process I am the one that should be punished for unlawfull entry. He should not be sued for not keeping his stairs in good shape.

Re:No shame!!

[doubledutchdesigns]

You seem like an intelligent person, your comments are well made. I agree with them. But why didn't you read the original article and figure out for yourself that Slashdot have got it wrong and there is NO lawsuit? Pity to write all that for nothing. ;)

Re:No shame!!

[dwandy]

Of course, it's insightful -- any mention of Linux on /. gets modded up ... even mis-seplled or unintentional.

Re:No shame!!

[dave1212]

you make spy software. that makes you scum.

Virus creator sues McAffee for USD 200$ Mio

[lightweave]

++++ fake ticker ++++ Johnny Bash, famous for writing applications like WORM32 and Trojan.Hoax, has today filed a lawsuit against McAffee. His complaint is that the EULA for this applications specifically forbids the reverse engineering or analyzing of the code for anti-virus companies. He says that by downloading and installing his latestes achievment, McAffee implicitly agreed to the conditions and thus violated the EULA by including the anti-virus measures in their latest software.

Re:Virus creator sues McAffee for USD 200$ Mio

[Anonymous Coward]

better yet, use crappy encryption and sue over DMCA violation claim

It will revolve around the word "use"

[Anonymous Coward]

If i do not agree to the EULA i am forbidden to use the program.
The question is if examining the application with disassemblers etc is "use".

This is ridiculous

[Snatch422]

Look at it logically. The makers of one software are claiming that no one can look at what their software does on a computer or you violate the EULA. This will never hold up and these projects are independent and not using code just referencing the files in a database. They cant prove that an anonymous web page wasnt their source of file/registry information anyway as much of that information is available these days.

Re:This is ridiculous

[Anonymous Coward]

You're still widely speculating.

Oh wait a minute, I forgot I was on slashdot.

For Heaven's Sake

[dunstan]

Am I the only one who views the use of law in this sort of a case as an admission of technical ineptitude?

Admitting distribution spyware?

[zeekiorage]

By putting statements such as "SpyMon can not be used in 'anti-spyware research'", isn't the spyware firm basically admitting that they are distributing spyware? Why would a legal, non-dodgy software company put such a clause in their EULA? I think if the judge rules in favour of the spyware company (unlikely), this will basically give green light to all other spyware and scumware vendors.

Re:Admitting distribution spyware?

[Anonymous Coward]

Yes. They sell a software package that is designed to monitor activity on a computer. My employer installs similar software on all its computers.

What's your point?

Are EULAs proven in court anyway?

[brunos]

From what I seem to reacall EULAs are not particularly easy to defend in court, and mostly court software piracy cases rely on copyright. What about adding a term in the EULA saying "this software cannot be used for research on legal cases" EULAs are just ridiculous. From my grasp of them they are a bit like a contract which means that if only one of the terms is not strictly legal (like this one) the entire EULA is void. Why can companies not just rely on copyright?

Re:Are EULAs proven in court anyway?

[BarryNorton]

From what I seem to reacall EULAs are not particularly easy to defend in court, and mostly court software piracy cases rely on copyright [...] Why can companies not just rely on copyright?

EULAs are copyright licenses, aren't they?

For instance: "The Product is protected by copyright and other intellectual property laws and treaties. Microsoft or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold."

Re:Are EULAs proven in court anyway?

[PGC]

Funny, because the stores keep telling us they are 'selling software'. It always says "Buy windowsXp", it never says "license WindowsXp" here. How can an EULA be legal if it is only shown AFTER the product has been bought and paid for ?!

Re:Are EULAs proven in court anyway?

[BarryNorton]

Funny, because the stores keep telling us they are 'selling software'

Perhaps you should take them up on their offer, 'buy' Windows from them, and then turn around and demand they take down the other boxes because 'Windows belongs to you now'...

How can an EULA be legal if it is only shown AFTER the product has been bought and paid for ?!

You haven't bought and paid for the product, but for a box with installation media and details of a license to which you can agree to legally install. It is only necessary that you be given opportunity to consider the contract before (implicitly) agreeing and installing...

Re:Are EULAs proven in court anyway?

[PGC]

That you do not own the ideas and such isn't a problem, however, you DO own the cd and all bits and bytes on it. Most EULA's however tell you what you may or may not do with that cd and those bits and bites . They have no right to demand any such thing, since I made a transaction with the store owner, not them. I am in my full right to do anything Iwant with the cd (and bits and bites) I bought as long as I do not violate the copyright laws.

Re:Are EULAs proven in court anyway?

[BarryNorton]

since I made a transaction with the store owner, not them

You make a transaction with the store owner on the physical media, but you make a contract with the copyright owner, who retains their copyright and licenses your use.

I am in my full right to do anything Iwant with the cd (and bits and bites) I bought as long as I do not violate the copyright laws

No, you must stick to the terms of the license agreement or you are immediately in violation of copyright law.

If I license you software on the basis that you hop on one leg once every minute, then if you break our contract, you have no license and are immediately in breach of copyright if you use my software. It doesn't matter that copyright law says nothing about hopping...

Re:Are EULAs proven in court anyway?

[Pofy]

>EULAs are copyright licenses, aren't they?

No, a copyright license would be a license to do something that is only allowed by the copyright holder. You would need such a license if you want to make your own copies and/or distribute them to the public and so on. The exact such exlusive rights of a copyright holders are well defined in the copyright law. The EULA is a contract they they want you to agree to, just like any other contract someone might want you to agree to. It is covered by contract laws.

Re:Are EULAs proven in court anyway?

[Pofy]

>>Funny, because the stores keep telling us they are 'selling software'
>
>Perhaps you should take them up on their offer, 'buy' Windows from them,
>and then turn around and demand they take down the other boxes
>because 'Windows belongs to you now'...

You are confusing buying a COPY of a software with buing the COPYRIGHT to a software. You buy a COPY of it in the shop. That does not mean you buy the COPYRIGHT. You become the owner of a COPY but not the COPYRIGHT. They are two very different things and one does not imply the other.

SO yes, the store sells you a copy which you becomes the owner of according to applicable sales laws. That does not mean you got any owenrships to the copyright. The person you replied to talked about buying such a copy, you replied starting to ramble about the copyright not being sold. No one claimed so.

Re:Are EULAs proven in court anyway?

[Pofy]

>No, you must stick to the terms of the license agreement or you are
>immediately in violation of copyright law.
>If I license you software on the basis that you hop on one leg once every
>minute, then if you break our contract, you have no license and are
>immediately in breach of copyright if you use my software.

Sorr, you would not be in ANY breach or infringement of any copyright at all. Feel free to tell what you thought of though. The copyright law defines a few very specific rights to belong to the copyright holder (with excpetions for others to still do it under some conditions). Only by doing any of that can you infringe copyright. Simply using a software as you say in this case would not infringe any of those rights. Sorry.

Re:Are EULAs proven in court anyway?

[BarryNorton]

The question was partly rhetorical - in Europe, at least, an EULA is exactly (as you describe a copyright license) "a license to do something that is only allowed by the copyright holder" - one must make a copy of software in order to execute it. I agree that EULAs, in themselves, are covered by standard Contract Law, but challenge: if I disagree with an EULA, i.e. never make the contract in the first place, how can I be punished, in the scheme you're discussing, for using the software regardless? In the reality of European Law, I'm in breach of Copyright Law, because I've no license. In your scheme, where an EULA is something different, I'm no less in breach of copyright law than if I did agree to the EULA, and there are no penalties in the contract, because I never entered one.

Re:Are EULAs proven in court anyway?

[BarryNorton]

The copyright law defines a few very specific rights to belong to the copyright holder (with excpetions for others to still do it under some conditions).

Yes, like making copies - I suggest you go to the library and read how IPR has been applied to software...

Re:Are EULAs proven in court anyway?

[BarryNorton]

You are confusing buying a COPY of a software with buing the COPYRIGHT to a software

No, I'm clarifying the difference between buying the installation media, and having any kind of 'ownership' of (right to execute) the software, rather than a license. You're the one who's confused...

Re:Are EULAs proven in court anyway?

[Pofy]

>but challenge: if I disagree with an EULA, i.e. never make the contract in
>the first place, how can I be punished, in the scheme you're discussing, for
>using the software regardless? In the reality of European Law, I'm in breach
>of Copyright Law, because I've no license.

Hmm. First of, there is no "European Law". Each country has its own laws, although they are quite similar, but can differ. I am not familiar wth each and every copyright law in Europe though, mostly only with the Swedish one since I am Swedish. In addition, I am quite aware of the various EU directives on copyright. As far as I can say, ther is no copyright infringement happening when you use software normally, hence you don't need a license to start with and thus can't be "punished" for it. This typically requires that you have got hold of the copy of the software in some sort of legal way. In such cases you would be allowed, for example, to make such copies that are needed since the law says so. The use in itself is not a copyright infringement, only such thing as creating copies and/or making them available to the public in various forms. That is what you would need a license for.

>In your scheme, where an EULA is something different, I'm no less in breach
>of copyright law than if I did agree to the EULA, and there are no penalties
>in the contract, because I never entered one.

Exactly.

Hmm, somehow I get the feeling I did not understood your question or what you tried to say...

Re:Are EULAs proven in court anyway?

[Pofy]

>Yes, like making copies - I suggest you go to the library and read how IPR
>has been applied to software...

Not sure what "IPR" means. Perhaps because I am not a native english speaker.

Anyway, most every country has exceptions in their laws so that you are allowed to make copes that are needed to run software you have lawfully aquired in some way. Such copies are NOT considered infringing and hence you do not need any special permision or license to make them.

Re:Are EULAs proven in court anyway?

[Pofy]

>No, I'm clarifying the difference between buying the installation media, and
>having any kind of 'ownership' of (right to execute) the software, rather
>than a license. You're the one who's confused...

There are no such thing as "right to execute". In addition there are two different ownerships when it comes to copyright, which are what I tried to say you mixed up.

First there is ownership to the copyright of the work and then there is ownership to individual copies of the work. They are not the same and one does not imply the other nor does transfer of one imply the transfer of the other.

The ownership of the copyright to a work is what gives you thr rights of a copyright holder which includes such things as copying and making it available to the public. That is typically not transfered when you buy copies in the store. The ownership of individual copies is what changes in the store. That is, you buy a copy and bcomes the owner of that copy, just as you become the owner of a toaster if you buy a toaster. You do not by that, get any ownerships to the copyright of the work, but you are thew owner oc a copy of the work.

So looking at the post you initially replied to, it was about how stores "sell copies", to which you replied talking about something related to the copyright claiming that there is no such "sale" in the store. In fact, you were sort of both right, but the initial poster did not talk about copyright ownership, but ownership of a COPY.

As for the right to run/use/execute a copy of the software, that does not require any copyright ownerships, it simply requires ownership (or in many countries simply possession) of a COPY. So when you buy a copy and gets the ownership of a copy in the store (but still don't get to own any copyright), you have all you need to run and execute it without any further license.

Re:Are EULAs proven in court anyway?

[BarryNorton]

Hmm. First of, there is no "European Law"

Indeed there is some breadth and some allowed delay in how European Directives are implemented by different member states - you Swedes are notoriously for being behind in bringing your IPR law in line with the homogenization we were trying to achieve in Europe (hence the existence of certain BitTorrent sites that we'll not name...) I believe, though, that you pulled up your socks in July, so I suggest again that you go buy yourself a good book on the subject...

Re:Are EULAs proven in court anyway?

[Pofy]

>Indeed there is some breadth and some allowed delay in how European Directives are implemented by
>different member states -

That does still not make an "european law" and states are allowed in many cases to go, for example, further than the directives. In addition, the specific directive in case leaves room for differences itself.

> you Swedes are notoriously for being behind in bringing your IPR law in line with the homogenization
>we were trying to achieve in Europe (hence the existence of certain BitTorrent sites that we'll not
>name...) I believe, though, that you pulled up your socks in July, so I suggest again that you go buy
>yourself a good book on the subject...

Thank you, I am VERY well aware of the subject including both the directive and the swedish implementation. The "site" you mention isn't affected really by the law change (and hence the directive) at all. You should know that if you know the directive and the swedish implementation of it. If you like, I can direct you to not only the implementation itself, but the very lengthy text work arround it, including various earlier versions, comments by concerned parties, all prorposed changes and ammendments that was up for voting in the parlament when the law was handled and so on. I have read them all in full, many times. Have you?

Interestingly you did not comment the actual subject though, that you are not in any way in breach of the copyright law by not having a "licnese" which is true, both before and after the implementation of the directive.

Actually, had you known about the directive, you would also have know that it did not concern software at all really. That was implemented by a much earlier directive, which was for example implemented into swidish copyright law many years ago. Just goes to show how much you know about the subject.

Re:Ya know...

[JavaBear]

I'm not much for killing sprees.
1) They leave such a terrible mess.
2) The cleaning bill is absolute atrocious.
3) The authorities take such an annoyingly dim view on it.

And In the case of these characters

4) They are not worth the price of the bullets.

I'm much more interested in trying out some of those EMP devices...

Re:Ya know...

[nietsch]

By the same token the US [c|sh]ould be bombed too. There are enough evil companies in their mids to justify obliteration, if you use the same reasoning as you do.
Maybe, just maybe, collective punishment is no justice at all. At least it will be self-eradicating: the relatives of the people that perished in your collective punishment are allowed to retaliate against proponents of that law and anybody that allowed it to come into force.
Until you have become a tryrant, i suggest you shelve those little plans of yours.

Tell that to Bnetd

[Anonymous Coward]

no text

Easy Solution

[Anonymous Coward]

Well I think the beast way around this is: "Any software that forbids us from evaluating it will automaticly be flagged as spyway by our system"

Re:Easy Solution

[MerRua]

Good plan actually.

Re:Easy Solution

[Hymer]

It is not good enough... It should be something like this: "Any software that forbids us, in any way, both technical and legal, from evaluating it and its purpouse will automatically be flagged as malicious by our system and removed."

Re:Easy Solution

[Anonymous Coward]

How exactly will it be detected if anti-spyware programs are unable to evaluate it?

Re:Ya know...

[JavaBear]

Ant that was supposed to be a bad joke.

I don't kill people. I don't want to either.
Teaching someone a lesson by killing them makes very little - if any - sense.

I'd rather see someone turn the tables on the bastards, and sue them into oblivion.

Have you seen Spymon's advertising on their site?

[Anonymous Coward]

I would add Spymon to a list of spyware after viewing their main page http://www.spymon.com/
"Ever wanted to be a hacker like in the movies?"

PLEASE THINK AND/OR RTFA BEFORE YOU POST

[Anonymous Coward]

Hey, dumb fuck! The company is British. They are filing suit in the US only because the "perpetrators" are based there. So if we were going to draw dumb-ass generalizations, we'd call the British sue-happy and the US spyware-hostile.

What if I reject the EULA?

[archevis]

I don't know this SpyMon thingy from before (perhaps it comes in Windows version only), but suppose I refuse to accept the EULA - does the shitware still install on my machine? If it doesn't I have to admit I'm not particularly intimidated by the spyware aspect of SpyMon.

On the other hand if I'm never presented with the EULA, or if it installs even if the EULA is rejected by the user, or even if the produkt does shit that I'm not properly informed of in advance, the EULA's not legally binding anyways. So what's the issue here?

I seem to recall that McDonald's had to explicitly inform their customers that hot coffee can burn your nuts if spilled. So it seems rather odd if RetroCoder can install compromising shit on your machine without properly informing you in advance?

As a side note, "spy" in norwegian means "puke"...

Re:What if I reject the EULA?

[Anonymous Coward]

"spy" in norwegian means "puke".

So Gator et al is pukeware? Appropriate since it makes systems vomit.

EULA

[Rixel]

By reading this comment, you agree to mod it up, should you have available points.

nuff said

Re:EULA

[mlk]

It is not the reading that is the "agree", but the "clicking 'I Agree' button" when you install it (with the Spyware-enhanced uber-shitty-microgame-you-play-once-before-uninsta lling)

Re:EULA

[ecbpro]

What if just at the moment you want to click on the "I Agree" button your cat jumps onto the mouse and clicks it? Basically then you did not agree with the EULA but your cat did. I guess in the US they will have to start to sue cats :-) For me, as long as I don't sign something it is not legally viable.

Re:EULA

[mlk]

It would be an intresting defence.

yes and no

[TubeSteak]

Yes, spyware companies leaned on the likes of ad-aware, spybot, etc

BUT

no, because their delisting was contingent on the company modifying the way their software installs/removes/whatever

some spyware companies changed a few of their nasty ways and were rewarded by being delisted. The anti-spyware companies (of course) have reserved the right to relist lapsed spyware makers.

Re:yes and no

[harlows_monkeys]

some spyware companies changed a few of their nasty ways and were rewarded by being delisted. The anti-spyware companies (of course) have reserved the right to relist lapsed spyware makers

Unfortunately, there are also companies that have been listed as spyware by mistake (sometimes partially their own fault, by letting their products be included in bundles, and the bundlers added spyware, or by having unclear pivacy policies, and then things like that). With some effort, they can get unlisted by many of the anti-spyware companies (after getting out of those bundles, clarifying privacy polices, etc).

However, some of the anti-spyware companies, including a couple in the top 4 most popular providers of free anti-spyware tools, are very slow to delist. Once you get past the top 4, there are many anti-spyware companies that list you because a couple of the big ones did (e.g., they copy their lists), and these companies almost never delist.

Consequently, threat of legal action is sometimes the only way to get them to actually look at your product and evaluate it on its own merits.

Shouldn't they be suing the users?

[Bueller_007]

The anti-spyware company never agreed to abide by the spyware's EULA, right? Wasn't the user the one who clicked the OK box? Shouldn't they be suing the uesrs of their program?

Re:Shouldn't they be suing the users?

[Melfina]

It's called "deep pockets", you sue the guy highest on top for the most amount of money. Sueing the employee that makes $56,000 compared to the company that makes anual numbers in the millions is a big difference~

how about this EULA

[Neuroelectronic]

upon purchasing this product, you agree to send all your future earnings to the following address until both of these conditions apply: You are dead, you are broke.

EULA Requirement
3106 Equinox Rd.
Dover, PA 17315

If you fail to meet the requirements of this EULA your life will be revoked.

see, I am a genious too!

Re:how about this EULA

[Anonymous Coward]

...I am a genious [sic] too!

That may be, but you ain't winnin' any spellin' bees...

Re:how about this EULA

[indifferent children]

Scott Adams did it better. Dilbert didn't read the EULA which stated that by installing pkg X, he was agreeing to become Bill Gates' towel-boy.

Re:how about this EULA

[Neuroelectronic]

I'm going to dignify that with a comment.

So much fun

[pepeperes]

U.S. lawsuits are merrier and merrier all the time! Very few surrealist artists had as much imagination as some lawyers do!

Re:So much fun

[psyon1]

Yeah, even funnier is that its a Brittish company doing the suing NOT an american one. Check the whois on the domain.

Registrant:
Double Dutch Designs Limited
329 Preston Road
Grimsargh
Preston, Lancashire PR2 5JT
GB

Domain name: SPYMON.COM

Administrative Contact:
Ball, Anthony anthony@doubledutchdesigns.co.uk
329 Preston Road
Grimsargh
Preston, Lancashire PR2 5JT
GB
+44.8701217399
Technical Contact:
Ball, Anthony anthony@doubledutchdesigns.co.uk
329 Preston Road
Grimsargh
Preston, Lancashire PR2 5JT
GB
+44.8701217399

Registration Service Provider:
UK Reg, domains@fasthosts.co.uk
+44 1452 541252
+44 1452 538485 (fax)
http://www.ukreg.com/

Re:So much fun

[pepeperes]

LOL!

What would they do in Elbonia?

[AMD-lover]

Just wondering: if your native language isn't English, does the EULA still stand in your country? Otherwise it would be VERY easy to dismiss such nonsense.

Re:If it looks like a duck and sounds like a duck.

[Anonymous Coward]

But if it weighs the same as a duck, it must be a witch.

Coming soon..

[GoLGY]

* Spyware that forbids detection by third party software
* Spyware that forbids removal by third party software

not research

[Chris Snook]

This is a commercial product, so it's clearly beyond the "research" phase. Sounds more like "analysis" to me. I bet it wouldn't be hard to convince twelve jurors of that.

I should stop...

[Anonymous Coward]

Sony defending DRM trojan with EULA getting sued in the US but introducing the same DRM trojan in Europe like it is a feature.

"People" admitting (like it is written in buzzword bochures) that it is wrong to play music on more than one device.

Microsoft being asked if it is right to sell their products as being used.

SCO, Scuttlemonkey and all the likes with their never ending FUD, BS and threats.

Video Game Fanboys in games.slashdot.org justifying their purchases with stock quotes.

I should really stop visiting this site and spend more time on the gun range or getting a pilot license. Wait. I'll check with geotrace where slashdot is located.

See ya!

HAHAHAHA

[Anonymous Coward]

HAHAHAHAHAHAHA... ahem. HAHAHAHAHAHAHA. ahem.

well this is ludicrous....

[shrewd]

firstly, how does a company prove that the EULA was agreed to? i'm sure you could demonstrate ways of detecting this filthy program without having to install it... therfore you can't assume the EULA was even agreed to, and thats IF the EULA can even be considered legal tender in this case, im sure you can make an argument that it goes beyond legal limitations by attempting to control the way other programs function...

Re:well this is ludicrous....

[phsdv]

From TFA: Before downloading the application, RetroCoder asks customers to agree to a statement that forbids its use by a researcher for an antivirus or anti-spyware company, or business related to these.

Re:well this is ludicrous....

[Anonymous Coward]

i would still argue that there are ways of getting the file without agreeing to a EULA.

Re:If it looks like a duck and sounds like a duck.

[CaptnMArk]

>non-user-non-MS-unintentionally-installed-softwar e

Why should MS be excluded?

Cool!

[Tehrasha]

I guess you can now hand the cashier at the bank a note that reads 'By reading this note, you agree to hand over all the money in the vault, and you will not call the police.'

HA

[MerRua]

Ha! They have big ones for trying that.
Wonder if they can look ya in the eye and say that.

Bleh

[Anonymous Coward]

need a ring of ELUA imunity +10...

EULA's can DO THIS??

[shrewd]

awesome! can't wait until the virus writers out there cotton on to this!

*note: by installing this virus you have agreed not to take part in virus scanning practices, you may not use the bytecode or any means of detection to scan for and/or remove this program.... MWAHAHAHAHAHAHAHAHAHA!

Re:EULA's can DO THIS??

[Anonymous Coward]

or something like

By installing this software you agree to the following:

-You will send this software to all the email adresses in your addressbook, and convice people to install it.

-After sending the software you will login as administrator and delete as many executable from your comuter as possible in any way.

Re:EULA's can DO THIS??

[shrewd]

you wouldn't even need to write malicious viruses anymore.... just get people to agree to do it all manually :)

The day reading an EULA constitutes acceptance:

[ettlz]

"By running Linux, BSD or any other operating system lacking either a Win32 or NT API, you are preventing the installation of the Software and in violation of this agreement, for which you may be liable for damages..."

bah

[Anonymous Coward]

fuck you I will disassemble, modify, and otherwise examine anything I want dispite your EULA.

Simple solution

[CarpetShark]

Dear Sunbelt Software, I just wanted to complain to someone about a crappy bit of software. c:\abc.exe is has been pissing me off for ages now. It does X, Y, and Z. I really wish there was some software out there to remove this crap. Thanks for listening.

Dear Pissed Off User, We actually make anti-spyware software, but I guess we can add this to the list, just because it bugs you so much. Have a nice day :)

EULAs in general.

[catwh0re]

EULAs in general are difficult to enforce, because they are often ambiguous, have clashing clauses or as they say in the legal world "have more holes than a lattice fence".
Legal documents are written with the intention of covering all possible situations, and often worded such that each clause is as broad as possible this is to avoid said lattice fence gaps. This is because once a gap appears it is exploited by lawyers to make the entire document sound ridiculous. (Which is often the case anyway.)

For example a lawyer will jump right onto this clause, and talk about all the other methods of research, they'll attempt to broadly classify what research is (including using the software at all.) His final point will be that it's impossible to satisfy the terms of the agreement in any way, making it an invalid document. For example the phrase "by reading this line you agree to not read this line", is obviously ridiculous, but essentially any lawyer will be able to make this EULA analogous to this.

First prove that Sunbelt accepted the EULA

[ammoQ]

Putting anything into the EULA means nothing if you cannot prove that the other guy ever accepted it.
This is spyware, so it's main purpose is to install it without the user noticing, right?
A user that doesn't notice the install obviously doesn't read and accect a f*cking EULA, so it doesn't matter what the EULA says.
Sunbelt might just as well have examined a contamined PC.

Re:First prove that Sunbelt accepted the EULA

[Plunky]

This is spyware, so it's main purpose is to install it without the user noticing, right? well, I'm not sure about that - I took a brief look at their webpage and while there can be that aspect to it, they also promote installing it on a computer you own (as a parent, or employer) so that you can monitor other users usage of that computer (your kids, employees). While this shows you up for a control freak if they dont know about it, in theory it would be ok I guess since its your computer. In any case, if the user (your kid, employee) does not know it is installed and wishes to check, I can't see any harm in that. At the end of the day, it IS spyware and a spyware checker should find it. Whether you wish to give your users admin rights so they can remove something like this would be a personal policy decision I guess. plunky

EULAs are not valid contracts...

[vhogemann]

At least here at Brazil.

To a contrat be valid, it must be an agreement between two parts. In the case of an EULA the consumer doesnt have any power of negociation, and in pratice cant change anything on the EULA.

The brazilian legislation also states that you cant be forced to agree with a contract that prejudice, or denies, any of your rights. This way no EULA can really be enforced here.

Just my 2c.

Re:EULAs are not valid contracts...

[pe1chl]

I think this is the case in most countries in the world (except maybe the USA?)

Like terrorism, EULAs mainly serve as a mechanism for threat. They can be referred to in letters from attorneys. In an actual court session they don't have much value.

Re:EULAs are not valid contracts...

[Anonymous Coward]

Like terrorism, EULAs mainly serve as a mechanism for threat.

An End User License Agreement, no matter how unfair, is a far fuckin' cry from flooding a train station with sarin.

Get some perspective, please.

Re:EULAs are not valid contracts...

[Anonymous Coward]

Yeah, 'cos the sarin only affects a small number of people...

Anyhow, if that is the definition of terrorism, then the 9/11 attacks aren't 'cos no saring and no train involved. If that isn't the definition of terrorism, then you've added nothing but noise to the discussion.

Re:EULAs are not valid contracts...

[Anonymous Coward]

It's the same everywhere I know (maybe not America), even here in the UK. A EULA has no legal basis whatsoever. All binding contracts between two parties MUST occur before purchase. You can safely ignore anything written in a EULA. That is a fact and don't let any weasels try and convince you otherwise.

Re:EULAs are not valid contracts...

[KrispyKringle]

The standard in Anglo common law (i.e. that in use in the UK and the US) is called "mutual consideration." For a contract to be binding, both parties must not just agree to it, but they must both give something (the "consideration") to the other party. In other words, a contract that says, "You agree to buy me lunch" is not valid; a contract that says, "You agree to buy me lunch and in exchange I agree to beat the first level of Halo 2 for you" is valid.

In this case, though, software licenses are generally considered limited grants for the right of use of the software; the consideration given by the publisher is the right to the software; the consideration given by the user is the waiving of liability as well as the other limitations (agreeing not to disassemble, use in anti-spyware research, etc). They are certainly of somewhat iffy legal status due to the fuzzy nature of the agreement, but they can be binding.

I used to wonder if software that had not been purchased--such as free software or software given as a gift--could not result in a binding contract, since the user had not paid anything, but I believe waiving certain rights and agreeing to the limitations in the EULA is enough.

Of course, I'm not a lawyer. So this is just my understanding.

Re:EULAs are not valid contracts...

[LnxAddct]

Its the same in America, this is why EULAs would never hold up if taken to court. In a worst case scenario, claim that you were drunk while clicking the button, a contract is not enforcable if you are intoxicated while agreeing to it. Read this.
Regards,
Steve

Re:EULAs are not valid contracts...

[LnxAddct]

It is the same in America. Read this.

Regards,
Steve

Re:EULAs are not valid contracts...

[Anonymous Coward]

The good news is that Free Software doesn't use EULAs at all. They do use software distribution license agreements, much like the agreements between a book author and a book publisher or between Microsoft and the company that makes and packages the copies of Windows you see on store shelves. If you read the GPL and other Free Software licenses (with a few minor exceptions), you will see that they only cover activities not normally allowed under copyright laws. Since installing and running software is allowed under copyright laws (copying to the hard drive and into RAM is legal without a license under US copyright laws) the GPL and other Free Software licenses don't affect that.

EULA's on individual computers

[pilybaby]

Perhaps there should be a system where any software installed has to agree to a license on that computer. So I can add my own EULA to my computer and any software vendor that has their software on my computer has to agree to it. There can be a nice API that can be used to get at the license and everything. If I have to agree to an EULA when installing their products on my machine, they should have to agree to my EULA to run their software on my machine. If they break it then I can sue them.

This is fair too, because as much as I don't understand their EULAs, they wont be able to understand mine. Vive la revolution in software consumer rights!

Re:EULA's on individual computers

[Khelder]

[Slightly OT, but I think P3P is cool, so...]

Your proposal is a little bit like how Platform for Privacy Preferences (P3P) works. You tell your web browser what your privacy preferences are and when you go to a site it compares your prefs with the P3P spec at the site. If they match, cool; if not (or if the site doesn't have a P3P spec), it warns you. Netscape 7 and IE 6 both have some P3P support. See the P3P implementations page for details and other implementations.

Re:EULA's on individual computers

[Marthisdil]

Except then you will have to prove that a) you gave them the EULA where a human was able to read it and "agree to it" and also b) prove that any issues "breaking" your computer were not the fault of the operator (i.e. you) or the hardware - both of which, you cannot prove - simply because they can show, factually, that a power glitch caused the power supply in your computer to dip it's voltage, thus affecting your motherboard, it's memory, and processor, thus, it quite possibly could have been anything else :P

Easily to counter by applying Isaac Asimov

[Anonymous Coward]

Person one opens the package, puts the contents on the table and leaves.

Person two installs the software on a computer, and leaves.

Person three has got no knowledge of the first two, and is therefore not encumbered by any EULA.

Problem solved.

(freely taken from one of Isaac Asimovs stories, in which a series of robots, all of them incapable of hurting a human, are coerced in taking part in a series of actions that results in the death of a human)

Kids

[aiken_d]

The next time some "Microsoft is 100% evil" or "IBM is 100% benign" topic shows up, can we all remember this?

Companies are staffed by people, some of whom are bright, some of whom are stupid, and some of whom either get or don't get the way the world works.

In short: a lot of people running companies, or purporting to run companies, are no more mature or adult than your average 3am slashdot reader (hey, wait, that's me!). Look at what they've done here: picked a fight they can't win, gotten more press for their company's nature as a spyware "vendor", and turned a lot of very knowledgeable, sometimes-irrational geeks (that's you, slashdot) against themselves.

Duh.

-b

It can be downloaded without OKing the agreement

[Anonymous Coward]

Just go to

http://www.spymon.com/downloads/install.exe

Then you can extract the files from the installer exe without agreeing to anything.

EULA's -- Does anyone read these?

[therealplagel]

Who reads these? If you don't agree do you actually not install and/or use this program? Someone could add a "This will blow up" warning, a la Inspector Gadget and I would have no idea what hit me. I'm probably the only one..

That's the price you pay

[Anonymous Coward]

...Which brings me to the second thing. THIS IS NOT A HOBBY. If you want to be an anti-spam advocate, if you want to write software or maintain a list or provide a service that identifies spam or blocks spam or targets spam in any way, you will be attacked...

http://diveintomark.org/archives/2003/11/15/more-s pam

Copyright is powerfull...

[leuk_he]

from the article (page 2):

Copyright law plainly wasn't designed for what RetroCoder is using it for, said Christopher Brody, a partner at Clark & Brody in Washington, D.C. "Copyright laws prevent copying, not examination, and I question the enforceability of such a clause based on copyright ownership," he said.

Well since copyright is alos used to prevent the unauthorized copying of banknotes, copyright is actually quite powerful. But copyright will not prevent you from studyding bank notes, it might prevent you from creating machines that can help you to duplicate bank-notes (try scanning in a bank note into photoshop and you get the point.)

Message for SpyMon developers

[50m31sl4sh.]

By reading this post, you agree to pay me $1,000,000.

Re:Message for SpyMon developers

[funkatron]

Your post look like a legal document; no one will ever read it.

Re:Message for SpyMon developers

[Anonymous Coward]

(Spymon developers laugh hysterically.)

Spymon: Our spyware division alone made 3 billion dollars last year.

50m31sl4sh: By listening to this, you agree to pay me $100,000,000,000.00!

Re:Message for SpyMon developers

[rabel]

We should develop a universal software installation privledges agreement. Something that is similar to robots.txt but applies to every bit of software that is installed on my computer.

Your EULA said that your software can hide from spyware detectors? Sorry! My Installed Software Privledges File indicates quite clearly that all software that is installed on my computer must not hide from spyware detectors. If you didn't agree to my ISPF.TXT file, why did your software complete it's installation?

Re:Message for SpyMon developers

[Artifakt]

Did you have your pinkie touching the corner of your lips as you wrote that? For some reason, that's important - courts won't touch this stuff without a pinkie.
By reading this far down, you agree to seed me all your sharks with frickkin lasers.

Re:Message for SpyMon developers

[Anonymous Coward]

damn...well, I don't have the cash so I'll hand over this deed to a bridge I own instead...

Re:Message for SpyMon developers

[ivanmarsh]

No kidding!

A company that thinks they have the right to use my machine without my permission shouldn't expect their EULA to be respected.

Re:Message for SpyMon developers

[Arandir]

By reading this reply you agree that I don't have to.

Re:Message for SpyMon developers

[buck_wild]

Damn. As soon as Boobla Boobla send me the money he owes me from Nigera, I'll get right on that.

hahahaha,,, PROVE IT!

[gd23ka]

'In order to add our product to their list, they must have downloaded it and then examined it. These actions are forbidden by the notice,' a RetroCoder spokesperson said." I don't know about Kangaroo Cout but over here THEY would have to prove that's what happened.

Faking a key-/buttonpress

[lightweave]

I wonder that EULAs can hold up anywhere in court, even in US. After all, it would be easy to write a program that shows the EULA for a splitsecond and inserts a button or keypress into the messagequeue. In fact smiilar techniques have been used by dialers in germany. After the regulation authorities decided that the fees, created by a dialer, can be challenged, when the user creates a backup of the binaries and sends it in for examination. The dialer would be installed by the authorities, so that they can see wether it really asked the user and told him about the fees, which would be the requirement. What happend then was that the dialers started to erase themselve after they created the connection, which left the user with nothing there to prove that he really was the victim. A company that uses an EULA for actual legal bindings would have to proove that the user really pressed the acceptance himself. I doubt that it is enough to find the software installed on my machine. Here I could always claim that I was not even aware of the installation because my kids did it and it would have to be proven in a court case that it indeed was me.

Re:Faking a key-/buttonpress

[Dachannien]

This is the same argument as getting your five-year-old child to click the "I Agree" button for you. I don't think it matters whether you send a message to the window, get your kid to click it, push it with a ten meter cattleprod, or just use your finger, in all cases you have the intent to use the "I Agree" button, and through your actions, it actually happens.

On the other hand, there are multiple arguments Sunbelt could use to indicate that they never had to agree to the EULA to use the software. For example, a client might have had a computer infected with the software, and they gave the hard drive over to Sunbelt for further research; or Sunbelt purchased the detection information from a third-party research company (or, for that matter, found the information on Usenet or the web), meaning they never installed the software in the first place.

I do, however, think this is an important case in terms of EULA enforcement and what kinds of screwy non-copyright-oriented terms you can put into a license agreement. I really hope it goes to and through trial instead of ending in yet another out-of-court settlement that provides zero guidance to the public.

Even simpler solution

[Anonymous Coward]

1. Hover mouse over Okay.
2. Type http://www.spymon.com/downloads/install.exe into URL bar.
3. Download crap without agreeing to EULA.

Re:Even simpler solution

[leuk_he]

That part does not mention the anti-spyware stuff. I bet the eula it is talking about is only displayed when you run the exe.

And i sure am NOT going to run that software on my pc.

anything could be n that eula. They even require a full page to say this install.exe is "(C) retrocode limited 2005"

Old News

[Ugly American]

* Spyware that forbids removal by third party software

The EULAs for Claria/Gator and DirectRevenue already forbid this, as of November 2004 or so.

Re:If it looks like a duck and sounds like a duck.

[droolfool]

What if it is a spyware duck that only looks like a duck and sounds like a duck, but has hidden cameras connected to a central server where people monitor your activity?

This kind of logic got SCO into trouble

[Anonymous Coward]

Remember, back in the beginning, Darl proclaimed that Linux must have his precious Unix code in it because otherwise it wouldn't be so powerful. To prove that someone violated your EULA, you have to prove that he is bound by it. To do that, you need to prove a lot of things. Good luck suckers. Maybe these guys should have a talk with Darl.

Re:Easily to counter by applying Isaac Asimov

[hey!]

But, if they are acting as appendages of a single corporate entity, it is in the eyes of a the law a single person doing this.

Alice, Bob, and Charlie may be off the hook (especially if they don't have the big picture), but the XYZ Corp that employs them definitely is not.

And tomorrow we shall see...

[kormat]

virii with EULAs stating that anti-virus companies are not allowed to dissect them.

No need to do 'research' on the software

[Timo_UK]

If they effectively admit in the EULA that this is spyware, it can go straight on the list without anybody looking at the program! Problem solved!

Re:No need to do 'research' on the software

[SComps]

Being on "the list" in and of itself means nothing. Aside from some of the more esoteric methods of behavior detection; being able to look at, and pick apart the binary is an important part of being able to detect it.

Just saying "Bad Prog V2.11" is spyware does me no good if your software can't detect if BadProg.exe is present.

Re:If it looks like a duck and sounds like a duck.

[hplasm]

Unless it's *NEW* *Duck Emulator V1.0* !!! TADA!!!

Runs on Linux.

Re:If it looks like a duck and sounds like a duck.

[buvic2]

Ah, I see you've met the newest CIA pets.

mod me into oblivion

[NotBorg]

I'm drunk and haven't RTFA and it still pisses me off. don't drink and /;.

Possible GPL Violation?

[Anonymous Coward]

Many years ago at Defcon one of the highlights was a program called Back Orifice (project lives on at http://bo2k.sourceforge.net/featurelist.html ) This looks like the same program with a reworked interface...

Heuristics or not, doesn't matter

[Anonymous Coward]

In the context of the EULA, it doesn't matter whether or not they used heuristics.

If they did any testing or validation against that particular software, they violated the EULA (FWIW).

They are in the clear, only if their heuristics are so good that their product picked it up on its first inadvertant encounter with the software on a machine that was not intentionally infected.

It won't fly...

[TheZorch]

A previous court case a few years ago declared that reverse engineering is legal. Few, very few, judges will go against a precident that's lasted that long.

Also, legal documents like EULAs and Contracts cannot by their wording violate the US Constitution, the constitute of the State in which it is written, nor current Federal, current State, County, and City laws. EULAs and Contracts do not give companies and individuals the ability to bypass the Word of Law.

A few examples of companies trying to get away with this are:

* Company rules restricting employee fraternization - They may have the right do to this in company premises, but I'd like to see them try to enforce such a rule in an employee's private residence. I can smell Civil Rights Violation a mile away. The ACLU would drool at the chance to handle a case like this.

* At Will causes in company contracts - In my state some business I worked for have "AT WILL" clauses saying they can let you go for any reason or no reason at all. Technically this is an attempt to circumvent Labor Laws and Equal Opportunity Labor Laws and likely wouldn't hold up in court.

There are just some examples of what companies are trying to get away with. No one person is above the law and no company should be allowed to be above it either.

Re:It won't fly...

[MrScience]

Let me know how testing your theories work out.

Re:It won't fly...

[xigxag]

Regarding your points

* Companies can't "forbid" fraternization. What they can do is decide they will no longer employ you should you fraternize. You retain your Constitutional rights to sleep with the blonde in the next cubicle. But there is no Constitutional right to work for Company X.

* At-will Clauses are, generally speaking, legal. It is entirely possible for your employer to announce to out of the blue that your services will no longer be required. However, if you are a member of a protected class (disabled, minority, over 40, etc.) or you were fired for performing an act permissible as a matter of public policy (attending a political rally, filing a worker's comp claim), you may have grounds to challenge the termination. But every state has different laws in this respect. I suppose it's possible, even, that some courts have deemed anti-fraternization rules as against public policy.

Sony

[Anonymous Coward]

Sony could learn from these guys! :P

Nothing to do with copyright

[Kaseijin]

Well since copyright is alos used to prevent the unauthorized copying of banknotes, copyright is actually quite powerful. But copyright will not prevent you from studyding bank notes, it might prevent you from creating machines that can help you to duplicate bank-notes (try scanning in a bank note into photoshop and you get the point.)

The designs of US currency, like other works of the US government, are public domain. Depiction of currency is restricted by the Counterfeit Detection Act. Adobe have, at the request of the Secret Service, restricted certain legal uses of their software.

EULA... SCAI

[Anonymous Coward]

Software Company Agreement for Installation?

By giving me this software to install in any way, you the software company agree that your EULA doesn't work, and to let me use it in any way, and that i can call it a piece of sh*t.

Put that in your computer and all ready...

Anti-Spyware Coalition

[Anonymous Coward]

The best process for these kinds of issues is

a. Anti-spyware vendor should join the industry organization http://www.antispywarecoalition.org/index.htm/ for classifying and unifying spyware categorization

b. Offended/accused spyware vendors could use the Vendor Dispute process http://www.antispywarecoalition.org/documents/vend ordispute.htm/

Downloading vs. Installing

[theonetruekeebler]

I can download it without installing it, right? If I don't install it, I don't violate the EULA. I'll just examine the contents using third-party tools and do some good old fashioned reverse-engineering.

And I'm 90% sure this part of the EULA wasn't written by a lawyer. Defendant can basically say "This isn't research" and tapdance all the way to the bank.

Honestly, next thing they'll be saying is that strapping these dummies to a table and yanking their entrails out with an iron hook is "anatomical research." It'll be fun to win that case by telling the jury I wasn't doing research---I was drawing and quartering a spyware manufacturer. The best part will be hearing the foreman say "not guilty on account of he was drawing and quartering a spyware manufacturer. And here's the addresses of a few spammers I know about."

how does one respond to this rationally?

[Ender Ryan]

DIE! DIE! FUCKING DIE! FUCKING DIE MOTHERFUCKERS! DIE! DIE! DIE!

That's the only response I could come up with. When the whole world's gone crazy, how does one respond rationally?

Seriously, purveyors of spyware should be brought up on charges in criminal court. We do the same for virus writers, how is malware any different? Can you imagine the courts allowing a virus writer to sue AV firms? :)

Re:how does one respond to this rationally?

[slowbad]

purveyors of spyware should be brought up on charges in criminal court

I, for one, am never going to shell out another $89 for even one more spyware/malware program!

Who is EU?

[Dov]

Why RetroCoder thinks Sunbelt is an End User of theirs? By the way, if You could develop anti spyware, You should definitly perform a spyware research, and knowing nothing about (or researching) existing anti-spyware solutions. (Though perheps it's not the most effective way to do so. :) )

Re:Who is EU?

[doubledutchdesigns]

EU is also short for Europe.

Everyone should be cheering

[Propaganda13]

It doesn't matter which company wins, either spyware or EULA is going to lose.

Re:Everyone should be cheering

[indifferent children]

No, one outcome is that spyware and EULA lose, the other outcome is that spyware and EULA win.

RetroCoders are going to die!

[AndroidCat]

Just wait! ex-spammer and OT Stu Sjouwerman will summon the forces of John Travolta and the Church of Scientology via South Park blast them! (Download, play seems to be broke.)

Re:Faking a key-/buttonpress - program WRITTEN !!!

[Anonymous Coward]

ALREADY DONE 11 years ago!

A program was written AGES ago that ONLY hit "Yes" on legal EULAs on the macintosh to allow users to deny culpability.

The application was called "No More Lawyers" and looked for the "Yes" button in apples installer tool used with many 3rd party installation products.

This program was shown to a large cheering crowd at Mac Hack computer conference in Michigan 11 or more years ago.

It is only now that i see the true wisdom of installing the program.

Goes back even further

[bigtallmofo]

I remember seeing such notices on BBSs circa 1986.

Re:Goes back even further

[Spackler]

I remember seeing such notices on BBSs circa 1986.

And I remember seeing your mom's boobs on that BBS in ASCII, (although you had to squint a little to see that they were boobs). I actually miss the days of cyan boobs!

Hasn't a crime been commited by Sunbelt?

[doubledutchdesigns]

Retrocoder Limited has NOT threatened to sue Sunbelt - we are currently looking at what legal options we have to defend our product.

This is a copy of the text sent to Sunbelt:

"If you read the copyright agreement when you downloaded or ran our
program you will see that Anti-spyware publishers/software houses
are NOT allowed to download, run or examine the software in any
way. By doing so you are breaking EU copyright law, this is a criminal
offence. Please remove our program from your detection list or we will
be forced to take action against you."

The action will be that we may be (in our opinion) forced to get the UK police authorities involved with Sunbelt over copyright theft. This is a criminal offence, not a civil one I believe.

Retrocoder Limited as the copyright holder, has the right to say who may or may not have its program. If someone has its program without permission, are they not guilty of a criminal offence?

For example, if you have a copy of Windows without MicroSofts permission, is this not a crime?

Below is a copy of the text sent to Joris Evers (who wrote the original article from it):

"As you can see, at the moment it is just a warning to them to stop
blacklisting the program. Our program is not a "trojan" or "virus",
it is used to keep a remote "eye" on your kids or employees. The user
must have access to the users machine in order to install the client.
Only the installer of the program can view the client machine. Our
program does not attempt to bypass firewalls or other such protection.

This is very different from "trojans" and "viruses" - they replicate
themselves and spread uncontrollably, you do not usually need direct
access to the users machine. They often try to bypass firewalls in
order to "reach" the internet.

Our problem is that companies like Sunbelt do not properly look at
software before they blacklist it. They clearly ignored legally
enforceable warnings that what they would be doing is not allowed by
the copyright holder. This shows that either they do not examine
programs properly or that they ignore copyright law. In order to add
our product to their trojan/virus list they must have downloaded it
and then examined it. Both of these actions are forbidden by the
copyright notice.

A similar situation arose with Grisoft with the AVG product. We sent
a similar warning letter out to them and they responded by removing
our programs from their blacklist. This resolved the situation and no
further action has been taken.

I will be consulting with our solicitor in the next few weeks about
companies like Sunbelt, what civil/criminal laws have been broken, and
how best to involve the UK Police authorities in action against them."

Re:Hasn't a crime been commited by Sunbelt?

[andrewweb]

Sounds like the action of someone who understands spyware/trojans and is fully aware that their software could be used in such a capacity. And is seeking to protect their revenue stream in effect by tying the hands of spyware/trojan etc detection publishers.

It may not be a virus as you say - so GRI would be right to remove it as such - but it could be used as a trojan as you are very well aware.

If someone had installed this on my system, I would want to know it was there. Would you?

If it's my system and I have installed it to keep an eye on the kids, and XXX product spots it's there, then I simply whitelist it. Simple, no?

No need for the "I'm a burglar - and if you are a policeman then you are forbidden from speaking to me" clause.

It's an admission of guilt I think.

Re:Hasn't a crime been commited by Sunbelt?

[Nerdposeur]

Retrocoder Limited as the copyright holder, has the right to say who may or may not have its program. If someone has its program without permission, are they not guilty of a criminal offence?

The problem is that you are specifically denying access to people who will keep you accountable. This monitoring software can clearly be used for malicious purposes. Imagine if your computer repair guy installed it on your computer, then started keeping track of what you do. Under this clause, you'd never have a tool to know that it was there.

I write songs. As a copyright holder, I do have the right to say, "nobody can record my songs and make money off them without permission." I do NOT have the right to say, "parents are not allowed to listen to my songs to see whether they are appropriate for their children to hear. By buying this album, you agree that you are a teenager and won't allow your parents to hear it, or I'll sue you."

If people want to monitor what their employees, spouses, or children are doing on the computer, fine. But I think the person being monitored should know about it. And in some cases, it might be dangerous if they don't. Do you want to be responsible for enabling stalkers? What kind of world are you helping to create?

Re:Hasn't a crime been commited by Sunbelt?

[Nerdposeur]

Another thing - whatever your software does, the law has to consider what precedent this kind of thing sets. What might other companies try if you succeed? The more I think about this, the more it upsets me.

Can a housecleaning service write a contract clause that says you agree not to check whether your maid is stealing from you? Can a building contractor put in a clause that says you agree not to have your electrical wiring inspected? Or, weirder but more parallel, not to look behind the walls for the hidden cameras they installed? Can a chainsaw maker write a clause that, by opening the saw's packaging, you agree that if it malfunctions and maims you, you won't sue?

It's amazing the ridiculous things that software companies think they can get away with. We would never put up with this in the real world. But EULAs are so common now, and so frequently ridiculous, that we just accept them as the price of using a computer.

Re:Hasn't a crime been commited by Sunbelt?

[Lochin Rabbar]

You should have consulted a solicitor before you embarked on this course of action, as you clearly have no understanding of copyright law. If you had consulted one they would of explained the "doctrine of first sale", (aka exhaustion) to you, and you would understand that you have no case.

For example, if you have a copy of Windows without MicroSofts permission, is this not a crime?

It is not a crime.

The action will be that we may be (in our opinion) forced to get the UK police authorities involved with Sunbelt over copyright theft. This is a criminal offence, not a civil one I believe.

Wrong, they have committed neither civil nor criminal offence, however you have just opened yourself up to an action for defamation. You really shouldn't go around accusing inoccent parties of theft.

Re:Hasn't a crime been commited by Sunbelt?

[just_another_sean]

The only thing new this post tells me that I didn't already understand from RTFA is that I should reconsider using AVG as an antivirus solution.

Re:Hasn't a crime been commited by Sunbelt?

[doubledutchdesigns]

first-sale doctrine: Softman v. Adobe

In addition, the Court found the plaintiffs EULA, which prohibited resale, was binding on the defendants because 'The defendants .. expressly consented to the terms of the EULA and TOU by clicking "I Agree" and "Agree."' This runs counter to Softman v. Adobe. The difference in these rulings has yet to be resolved by a superior court

Re:Hasn't a crime been commited by Sunbelt?

[Lochin Rabbar]

Sometimes large corporations with expensive legal teams can sway courts into making wrong decisions. That was such a case in California, which wil give you no precedence in an English court. Even in California if I wanted to get that precedent overturned I would choose to take you on. Adobe has an aura of respectability that Retrocoder does not, though that is unfair, they are in actuality just as sleazy as you.

Re:Hasn't a crime been commited by Sunbelt?

[Anonymous Coward]

not sure how many people are thinking this but...

*fuck you* with a broken wooden spoon you greasy opportunistic cocksmoking son of a bitch. I hope you do file a suit, so that your deplorable illegal activities are a matter of court record.

Re:Hasn't a crime been commited by Sunbelt?

[Anonymous Coward]

You have probably come to the wrong place for sympathy. There is little difference in my mind between your product and spyware.

Re:Hasn't a crime been commited by Sunbelt?

[Anonymous Coward]

In order to add
our product to their trojan/virus list they must have downloaded it
and then examined it.

Practically speaking, this is probably what happened. However, laws are about proof:

1) Do you have evidence of a host in their administrative domain downloading the relevant content from a host in your administrative domain?

2) Do you have evidence that an unaffiliated amateur, therefore EULA compliant, anti-spyware activist DID NOT volunteer your software's signature to Sunbelt, and/or other similar projects?

These two bits would seem key to any case you would bring.

And, copyright violations are typically civil offenses. Note the _civil_ cases brought against folks for P2P music and movie filesharing.

Re:Hasn't a crime been commited by Sunbelt?

[doubledutchdesigns]

1. We make software that allows you to keep an eye on your children while they are on the internet.

2. Some anti-virus software blacklisted our software.

3. We state that they are not allowed to download our software in an attempt to stop them blacklisting us

4. They carry on doing so, ignoring our warning they they are expressly forbidden from downloading our software - it is our copyright.

5. They ignore our attempts to contact them

6. So we consider going to the police to stop them downloading our program without permission.

7. We get flamed by a load of people who don't seem to understand the situation!

Why are we sleazy?

Re:Hasn't a crime been commited by Sunbelt?

[techwrench]

>>Retrocoder Limited as the copyright holder, has the right to say who may or may not have its program. If someone has its program without permission, are they not guilty of a criminal offence? Did you publish your product with the intent to sell the product, or deny certain segments of the public from aquiring it? >>For example, if you have a copy of Windows without MicroSofts permission, is this not a crime? This is a negating issue here in the US. If you purchase a piece of software and unwrap it, you have by default agreed to the conditions under which the Designer and the Reseller have imposed on the purchase. Microsoft understands this- that is why thier products are so widespread. Why publish and disseminate a product in which discriminates its potential customer base?

Re:Hasn't a crime been commited by Sunbelt?

[pintpusher]

1. We make software that allows you to keep an eye on your children while they are on the internet.

Fine. good luck with that product.

2. Some anti-virus software blacklisted our software.

Oh, that's unfortunate. Simply explain the situation to them and hopefully they'll change their minds. If not, well TOO BAD. Its THEIR software, they can do what they want with it.

3. We state that they are not allowed to download our software in an attempt to stop them blacklisting us

Well, a sure fire way to get someone to blacklist you is to prevent them from actually examining your product and engaging in a dialogue about its application. In the world of anti-spayware/virus I would assume that if you can't get information, then you must blacklist it rather than expose yourself.

4. They carry on doing so, ignoring our warning they they are expressly forbidden from downloading our software - it is our copyright.

See, this is where you set down the wrong path. You should have pro-actively engaged the anti-spyware industry along the lines of "Hey, you guys call us spyware, but we're not and here's why..., can we come to some agreement about this?" Unless of course, it is just crappy spyware, in which case they'll throw you out. Further, as has been written several times already, they don't have to download it. All they have to do is go to a client's computer that already has it installed. Or perhaps someone handed them a copy of the binary and asked them to figure out what it was? The point is your attempt to forbid download has no effect at all on whether they can examine your software. It is merely inflammatory.

5. They ignore our attempts to contact them

Why should they communicate with you now? You've already tried to cut them out of the process with useless but inflammatory things like your anti-anti-spyware EULA?

6. So we consider going to the police to stop them downloading our program without permission.

Well, you certainly can consider it, but first you'll have to establish that they downloaded the program, and that your EULA clause is applicable at the time of download and not time of installation. And then you'll have to find a cop who actually has time to deal with this crap instead of his backlog of robberies and car-jackings.

7. We get flamed by a load of people who don't seem to understand the situation!

What we don't understand is how you think you can pull this off. You've taken the wrong tack and need to re-examine your process. A pro-active engagement of the anti-spyware/virus industry from the start would have done a lot to remediate this situation before it arose.

Why are we sleazy?

Because you make software that spies on people. jeez, it's not complicated.

Re:Hasn't a crime been commited by Sunbelt?

[MikeBabcock]

Consider General Motors claiming that aftermarket hardware companies aren't allowed to purchase or examine GM products, parts or vehicles at all.

Re:Hasn't a crime been commited by Sunbelt?

[dozer]

It's your step 3 that makes you sleazy. Your program is BY YOUR OWN DEFINITION spyware. Why wouldn't an anti-spyware tool remove it? As soon as you hire a lawyer, he'll tell you that judges look down on bizarre (and, yes, sleazy) contractual shenanigans like this. Good luck! You're going to need it.

Re:Hasn't a crime been commited by Sunbelt?

[smoker2]

Did you ever consider sending a polite notice at any stage, to inform the anti-spyware companies of your programs function ?

Telling them they are not allowed to even look at it is childish and asking for trouble. Besides which, are you saying that there should be no anti-spyware software at all ? Don't you think that the end users might deserve some respect in all this ?

Or are you simply interested in aiding petty sneaks in their privacy invasions.

If you were providing an "upfront" service you would not need to beg other companies to be nice to you. I guess I hope that Sunbelt agrees to declassify your software, at a per installation price, say $1 per machine. How much do you charge again ? Oooh bargain, only £15 for 5 machines.

I guess you pretty much lost your case when you wrote SpyMon will allow you to watch other people's computers as they use them.

Re:Hasn't a crime been commited by Sunbelt?

[OrangUtanUK]

(UK writer)

My preferred course of action:
apply to the High Court, complaining that the directors of the spyware company are not fit persons to be the directors of a company, since they are allowing the company to behave contrary to the public interest.

This is neither criminal nor civil, but executive in nature.

What Larks!

OrangUtanUK

Re:Hasn't a crime been commited by Sunbelt?

[Frenchy_2001]

Retrocoder Limited as the copyright holder, has the right to say who may or may not have its program. If someone has its program without permission, are they not guilty of a criminal offence?

For example, if you have a copy of Windows without MicroSofts permission, is this not a crime?

Actually, the answers are NO and NO.
When you buy a copy of Microsoft windows in a store, you enter a tacit sellin contract with that store. Then, on TOP of that, Microsoft tries to limit your possible use of that good, which may or may not be legal. But the only restriction that Microsoft places legally and in an unchallenged way is that you have to BUY their product.

In the same way, once you have allowed people to download the software, you cannot restrict who can use it or not. It would be discrimination.

Microsoft does not prevent researchers or black people or foreigners to use their software, they just prevent people WITHOUT a LICENSE. Then, on top of that, they want to restrict your rights to only USE the software. Here, you grant a license to all (free download) and then say that some kinds of people (anti spyware researchers) are not allowed to use it. It is like saying that french people could not use it. Or any group of people. It is discrimination, pure and simple.

Even restricting a type of use for a product you have the right to use may or may not be legal. A court maintained the right of a company to disassemble a program they had bought to keep it working and improve it.

Re:Hasn't a crime been commited by Sunbelt?

[Skapare]

1. We make software that allows you to keep an eye on your children while they are on the internet.

It can also be put to use in other ways. It could be installed by one spouse to spy on another. It could be installed in offices to spy on coworkers, the boss, or for civil espionage. How do you make sure only parents of children can install it only on the computers their children use? These are situations where the need to be able to detect any form of spyware, not matter what the design intention is, is real.

It won't detect kids who boot a Linux or BSD CD such as Knoppix.

2. Some anti-virus software blacklisted our software.

Don't you mean anti-spyware software? Don't you mean they merely detect and report (and maybe optionally remove)? Blacklisting doesn't enter into this.

3. We state that they are not allowed to download our software in an attempt to stop them blacklisting us

Again, it's not a blacklisting issue. If your EULA only expressed "blacklisting", you've already lost your case.

4. They carry on doing so, ignoring our warning they they are expressly forbidden from downloading our software - it is our copyright.

It might have been downloaded by someone else, first, who intended to use it either for good or evil, and then your software was discovered by a security expert upon inspection of a malfunctioning computer system. It may be that the software was installed by someone who had inappropriate access to the machine (a neighbor kid, for example) and the owner brings the malfunctioning machine to the experts who discover many spyware programs that the owner never installed.

5. They ignore our attempts to contact them

Given how you seem to be twisting things, I would ignore you, too, unless and until you decide to really pursue a genuine legal case.

6. So we consider going to the police to stop them downloading our program without permission.

Since the EULA you claim they violated makes it a violation of contract, not a violation of a specific criminal statute, this would be a civil case, not a criminal one.

7. We get flamed by a load of people who don't seem to understand the situation!

There seems to be a lot that you don't understand.

Why are we sleazy?

1. You are making a tool that could be readily abused in a very broad way.

2. You are hinting at pursuing a case that could establish a defense usable by software makers with even less honorable, and less naive, intentions.

Re:Hasn't a crime been commited by Sunbelt?

[Anonymous Coward]

Yeah, sounds great you fucking scumbags. Remember NetBus? That was used for remote administration and monitoring, too.

But you know what it really was?? It was a fucking virus, a fucking trojan virus! And you know what AV software did? DELETED IT!

Just as it should have.

Re:Hasn't a crime been commited by Sunbelt?

[Scarblac]

If you read the copyright agreement when you downloaded or ran our program you will see that Anti-spyware publishers/software houses are NOT allowed to download, run or examine the software in any way.

I am not a lawyer, I just read about law on Slashdot.

As far as I know, copyright law gives you the right to control transfer (copying) of the program. It doesn't give you the right to control how someone who is in possession of your program uses it.

Furthermore, since you as the copyright holder perfectly freely distribute the program from the URL http://www.spymon.com/downloads/install.exe, your company is the only one doing any distributing. You can hardly be infringing on your own copyrights. I'd like to see you try to get a criminal court to convict someone for downloading a file from your website using a public URL.

Re:Hasn't a crime been commited by Sunbelt?

[Ponzicar]

Your software can also be used maliciously, so it makes perfect sense for scanners to detect it. If it is being used legitimately, then the owner of the computer will know what it is, and tell the scanning program to not remove it.

Re: Hasn't a crime been commited by Sunbelt?

[giafly]

Possibly there's a crime, but it's not so-called copyright theft. Many readers find this term as stupid and insulting as you probably find some Slashdot comments.

Also IANAL but I think The Copyright and Related Rights Regulations 2003 allows you to prevent reverse engineering, but does not forbid the making of a temporary copy for other lawful purposes such as identifying it for a spyware list. As I read it, people don't need permission from the copyright holder to do this.

Re:Hasn't a crime been commited by Sunbelt?

[dantheman82]

Although you spoke with rhetorical flourish, your entire post shows your ignorance of the issues at stake and is quite illogical. You know for a fact that when someone discovers that your software is running on their system (installed by someone else), there is no way they can have read your EULA and it's obvious that the anti-spyware researchers who may be examining their system are not aware of the EULA either. So, the burden of proof lies upon you to prove that they were pirating a version of your software and bypassing the EULA explicitly (if the EULA is in fact legally binding, which is another discussion). In fact, you have no evidence that they downloaded OR installed your program rather than witnessing it's effects on a system of someone who your software was spying upon. Hence, your whole argument based upon the EULA is bogus due to the very nature of the software you sell.

You furthermore have no control over whose system it is installed on. I could maliciously install YOUR SOFTWARE on a neighbor's computer and steal their personal information and credit card number, etc., because I have been on their computer for 5 minutes. Now, if that person discovers an identity theft and it is linked to your spying program, how would that be Sunbelt's fault? In fact, you even happen to encourage invasion of privacy (or even illegal activity) by suggesting, "Do you want to be a hacker like in the movies?" That, I'm afraid, has invasion of privacy and/or identity theft written all over it!

So, no, I'm afraid this isn't a case of a pirated version of Microsoft Windows. Furthermore, this program can be illegally bundled on someone's system without your knowledge with known spyware in order to do keylogging and other "innocent" things. I'm not necessarily saying you should be blamed for this necessarily, but you evidently don't see how black hat hackers love programs like yours for their own purposes and that could be where Sunbelt got involved. And the lack of professionalism of your website adds to their suspicion, rather than alleviates it.

The fact that you stonewalled Grisoft about it is neither here nor there. People threaten legal action over very silly things these days and often can bully their way into anything they desire, but that doesn't mean you have any further legal grounds for your argument.

Oh, and apparently you weren't aware when you registered as a Slashdot user - that by posting to this blog, you abdicate all legal rights to sue anti-spyware companies. Oh, you weren't aware of that? I'm really sorry...

Re:Hasn't a crime been commited by Sunbelt?

[scheming daemons]

1. We make software that allows you to keep an eye on your children while they are on the internet.

And allows stalkers to spy on unsuspecting prey. And allows abusive spouses to spy on their spouse. And allows nosy neighbors to spy on others in the neighborhood. Your product is reprehensible, and a violation of all of the basic tenets of a free society.

2. Some anti-virus software blacklisted our software.

Which is their right. Bravo for them.

3. We state that they are not allowed to download our software in an attempt to stop them blacklisting us

There is no legal precedent for you to be able to "state" how someone, who obtained your product legally, may use it. The RIAA cannot prevent me from using a Brittany Spears CD as a coaster, as long as I purchased it legally.

This instance is where you're wrong. You can "state that they are not allowed" all you want, but you don't have a legal foot to stand on. Once they obtain it legally, they can do whatever they want with it - as long as they don't sell it or violate your patent.

4. They carry on doing so, ignoring our warning they they are expressly forbidden from downloading our software - it is our copyright.

Your warning has no basis or ability to be enforced by law. You're simply wrong. If you make it available for download, you cannot restrict who may download it without being guilty of discrimination.

5. They ignore our attempts to contact them

They have no legal obligation to talk to you.

6. So we consider going to the police to stop them downloading our program without permission.

If you make your product publically available for download to some people "without permission", then you cannot restrict the download from other people without being guilty of discrimination. In any case, you can't even prove that they downloaded it. It might have been given to them by a 3rd party. In which case, the 3rd party didn't "violate" you agreement since they didn't blacklist you, and the anti-spyware didn't violate it since they didn't actually download it. You're screwed.

7. We get flamed by a load of people who don't seem to understand the situation!

We understand the situation perfectly. You created a product that allows people to spy on other people without their knowledge (probably in violation of several other laws). You make this product publically available to anyone with an internet connection. You attempt to restrict the usage of the product AFTER it was obtained legally from your publically available web site. You only restrict the usage to those who download it for one particular purpose, but not others... engaging discrimination in the process.

Why are we sleazy?

Because you make a reprehensible product, make it publically available, and then get upset when people who obtained it decide to give other people the ability to render your reprehensible product useless.

Fuck you.

Re:Hasn't a crime been commited by Sunbelt?

[doubledutchdesigns]

"Oh, and apparently you weren't aware when you registered as a Slashdot user - that by posting to this blog, you abdicate all legal rights to sue anti-spyware companies. Oh, you weren't aware of that? I'm really sorry"

We are NOT trying to sue them - please read the posts.

Re:Hasn't a crime been commited by Sunbelt?

[shameless]

Hmmm... I'd say that Sunbelt doesn't have a thing to worry about. RetroCoder obviously doesn't have a lawyer worth a damn, if indeed they have one at all. No lawyer in their right mind would allow their client to keep digging themselves into a hole like this.

Then again, maybe that says something about their legal team... maybe the SCO lawyers are moonlighting?

Re:Hasn't a crime been commited by Sunbelt?

[andymadigan]

(writer from the states) I'm not sure if there's anything like this in U.S. law, but if this really works in the U.K., I suddenly find myself liking the UK's Legal system....

Wow

[cyberwave]

...So they are sueing them because they "must" of done something that is totally legal, or :should: be totally legal? Judges should be allowed to fine people for being stupid. Are they? IANAL.

The criminal sues!

[Jafar00]

It's like a bank robber suing the bank after the robbery because he slipped on the floor during his getaway and sprained his ankle.

Asshole is right. Look at this...

[bigtallmofo]

Everything about these idiots screams "asshole". Look at their web site advertising their product:

Don't know what your kids are doing on the net?
Worried that your partner is cheating on you?
Want to see what your employees are really doing instead of working?
Ever wanted to be a hacker like in the movies?

Great product niche - allowing paranoid idiots to spy on everyone in their life. Then there's a fantastically smug notice at the bottom of the web site that says:

Please note that the "crack" by "team tbe" doesn't work anymore. ;)

Like I said - everything these guys do and say has asshole written all over it.

Re:If it looks like a duck and sounds like a duck.

[springbox]

Nope. Sorry. Your attempt at classification of this duck is in violation of the Duck EULA for passive observers.

Re:If it looks like a duck and sounds like a duck.

[hcob$]

But if you float like a duck, YOU'RE A WITCH!!!!!!!!!!!!

Paperwork

[quibbs0]

You know the sad part about all this is what is written tends to define the lawsuit. That is, the EULA specifically states the "rules" of their game. I have watched enough Judge shows at lunch (Judge Alex, Texas Justice, Judge Joe Brown...yeah yeah I don't get extended cable) to know that if you do have something written, you end up with the proof. If you don't, you are screwed.

Unfortunately for anti-spyware companies in this case, there was a specific clause that said essentially "you can't analyze our shit".

I'm no lawyer, but it sounds like the good guys are gonna get the short end of the deal in this situation because of a "technicality".

Perhaps bartenders should go this route and have their patrons sign a legal disclaimer everytime they get a drink. That way, just incase he/she get drunk, they are unable to sue the bar(tender) for damages when they drive their car into a field full of cows. Hey technically that would cover the farmer for suing for the cows too right?

Justice is Served once again!

Re:"Buying" Software

[ChiRaven]

I would think that one "buys" software the way one "buys" a book. The buyer owns the physical media, but the ideas and thier expressions are and remain the intellectual property of the author of his/her assignees. And the author/publisher obviously have the right to sell other copies of that same book to more people.

Microsoft provide SunBelt with their spyware defs

[damieng]

Check out http://www.sunbelt-software.com/CounterSpyEnterpri se.cfm

"Microsoft shares their spyware definitions with Sunbelt, but SunBelt uses the threat information differently."

That would mean SunBelt haven't violated any EULA's and that the lawsuit should be aimed at Microsoft...

Re:If it looks like a duck and sounds like a duck.

[pstils]

Yeah and it turned me into a newt. I got better.

EULA's are no good

[Saint V Flux]

Judges have ruled repeatedly that EULA's are not legally binding since virtually no one reads them. Besides, trying to write in a clause saying that you can't be stopped from doing something illegal won't hold up in court.

Re:EULA's are no good

[ccady]

I call BS. Name me a prominent case where a judge has ruled "that EULA's are not legally binding since virtually no one reads them." I'd love that to be true, but in this case you're pulling "facts" out of thin air.

Re:EULA's are no good

[cosmo7]

Here's one: Adobe.

The judge rejected Adobe's claim that the bundled copy was a "license" rather than a "sale". Thus, the First Sale doctrine applies, meaning Adobe cannot control the subsequent transfer of the the software after the initial sale. The court also found that SoftMan was not bound by the EULA because it had never assented to it. The validity of EULAs was also questioned as the terms were not fully disclosed prior to the sale. Linux Journal has more details.

Furthermore, if I write a EULA for an application that states that I may beat you over the head with a spade or shovel, the cops aren't going to stand by and watch while I beat you into a pulp. (Sorry for the violent imagery. I've been watching the whole Lost first season on DVD.)

Re:EULA's are no good

[arminw]

.....Judges have ruled repeatedly that EULA's are not legally binding.....

EULAs can't be legally binding for the simple reason that it is impossible to prove WHO clicked the mouse or ripped the package open. Any AGREEMENT has to identify who is agreeing. For business, there may be a way to pin the identity on the business if not on the individual person. For consumers though it would be pretty difficult to prove the identity of the mosue clicker. The EULA is just a way that software companies have had so far of getting out of being held responsible for crappy products. For any tangible product the terms of such "agreements" would be thrown out of court or found to be illegal.

Re:EULA's are no good

[brendan_orr]

s/shovel/wet herring/

much better imagery

Re:EULA's are no good

[ccady]

I apologize for not making myself clear. I said 'Name me a prominent case where a judge has ruled "that EULA's are not legally binding since virtually no one reads them." '

The Adobe case is about SoftMan re-selling unopened versions of Adobe's software. This case is about SoftMan not assenting to the agreement, and possibly that the terms were not fully disclosed prior to sale. It is not a condemnation of EULAs because nobody reads them.

Your comment about beating someone over the head with a shovel is also a valid argument against EULAs which claim to take away rights which are inalienable, but again, it has nothing to do with EULAs being read or not read.

Is a anti-spyware maker really an end user?

[mykhailjw]

Would the EULA really fall into affect here if the anit-spyware maker is not an end user? Wouldn't it be easier to go after someone that is using the anti-spyware software to get rid of their product? But really what company wants to take a leak on the hand that they eat with?

Hell, they admit it on their website!

[BobPaul]

Their website is linked in the article brief.. They state right on the website that the purpose of the software is for spying on other people who use the computer.

This isn't your normal spyware (think adware). From what I gather reading their website, the software doesn't communicate back to the internet to store private information in some database. It also doesn't try to sneak itself into your computer. You have to pay to download it even.

Essentially it's a keylogger, and the antispyware company could easily have added its signature without actually installing the program. Read the website and you know how to classify it, extract the binaries from the installer, get a signature and add it to your database and you've never been presented with the EULA. Should be open and shut...

Either Possess Guts or Does Not Possess Mind

[fdiskne1]

One or the other. It's bad enough the company has this in their EULA, but the fact they are trying to enforce it through the courts proves one of two things. They either have a legal department/management team with serious balls or their legal department/management team is out of their mind. One or the other. I personally would believe the latter. I can't wait until it gets laughed out of court or, even better, the judge takes the evidence and does whatever he has to do to get the company prosecuted.

Since I'm not logged in yet when posting this message, I have to type in a captcha. This one is "agree". By typing this, what am I agreeing to? Crap, time to get my lawyer to read this page before pressing preview.

Re:Either Possess Guts or Does Not Possess Mind

[Antique Geekmeister]

There's a third excuse for this lawsuit: SpyMon could be scared of various filters openly detecting them as spyware, and sees a real loss of business from it. Spyware and adware companies have been filing suit for years, now, complaining about their classifications. This is just another logical step to protect their "business models", especially since if they can protect it by law, they don't have to actually write good software that avoids detection or removal by third parties.

EULA is enforcable?

[Anonymous Coward]

From where does a EULA derive its power?

As far as my country's laws (Israel) go, agreeing to a contract consists of a written signature, or verbal agreement. Clicking "I agree" buttons (or autoscripting such clicking) does not constitute a legally binding contract.

So how come EULAs get enforced at all?

To me, it seems as though the EULA never had any legal power, but by repeating it enough times as a "big lie", slowly people start accepting it as more than a legally void question when they start their programs.

you all make good points but

[Flunitrazepam]

Who will spy on the spies spying on the spyware?

Pitchforks

[PhYrE2k2]

Let's get some fire and some pitchforks...
-M

EULA's power

[Peaker]

Where is the power of the EULA derived from?

In my country (Israel), only a written signature or a verbal agreement constitutes a contract. Clicking "I Agree" buttons bears no legal meaning.

So is the EULA legally valid, or is it based on the repetition like a "big lie" until people learn to believe that it is true?

Re:EULA's power

[Anonymous Coward]

I'd so live there if you guys would just stop letting towelheads muzzies live in your country. They cause nothing but problems for you. Then again you'd probably arrest me for smuggling in pork, which I would indeed do, even if it's intended only for myself. So yeah nevermind, screw Israel.

Re:EULA's power

[Artifakt]

In the United States, contract law includes some special cases. One of these is a set of laws dating back to the 1920's and found in the Federal system and 44 of the 50 states, that hold a person buying a ticket to a film, play, or sporting event has entered into an implied contract. This means the movie theatre owner, for example, can prohibit the ticket buyer from bringing in food and drink from outside the theatre, even though there's no written document and signature system supporting it.
          EULAs are based loosely on several such groups of laws that allow exemptions to the normal rules of contract, like requiring a written document, requiring the contract to be affirmed before any money actually changes hands, and other such rules. I specifically mention the theatre laws because they were interpreted to apply broadly to entertainment, and thus were assumed by some EULA writers as a model to apply to computer programs for entertainment purposes, so they have ended up having more influence over what corporate lawyers belive is allowable in a EULA than most of the other exceptions.
        Is it a big lie? Read my sig if you're going to seriously consider a slashdot post as legal advice, but there look to be a lot of assumptions that have no legal merit what-so-ever:

1.asuuming law originally specifically targeted at preserving the 'mom-and-pop' theatre owner's livelyhood can stretch to cover entertaining computer programs, to the next stretch that extends it to ALL computer programs.

2. assuming state laws that allow or forbid anything related to copyright haven't been even slightly affected by the 1970's era Supreme Court decisions that make all copyright law federal.

3. assuming those same possibly now unenforcable state laws apply to interstate commerce, and that the way they apply is based entirely on what state the business granting the EULA incorporated under. (Many EULAs contain specific clauses about what state's laws are to be used to resolve disputes, even though (see pt. 2) court decisions seem to suggest any copyright portions of the EULA, at the very least, are not enforcable at any state's level, but only under the Federal system. Many other EULAs have clauses stating (very roughly) that the recipient may have other rights that are guarenteed by their state's constitution, but I have seen very few that mention there may be rights guarenteed by the Federal government regardless of state of sale).

RetroCoder Information

[Anonymous Coward]

From Companies House:

RetroCoder Ltd

Actiing Agent

[Anonymous Coward]

IANAL, but in the scenario you outline, Sunbelt is acting as an agent for the client. Therefore, the client would be accountable for actions taken against the EULA by Sunbelt. Presumably, Sunbelt will indemnify their client as sending their client's name to SpyMon would be bad for business. Hence it is Sunbelt's problem.

Re:If it looks like a duck and sounds like a duck.

[Aonghus142000]

...Or a very small rock ...

Re:Mods?

[CaptainFork]

Is this the kind of "Insight" I can expect on Slashdot from now on?

Re:If it looks like a duck and sounds like a duck.

[Alphabet Pal]

Speaking of "runs on Linux"... there aren't any spyware programs that run on linux yet, are there? Not that I'm, um, worried about my wife, um, seeing what I download when she's out of the house... just curious...

MOD PARENT UP!

[psyon1]

Sorry, I am all out of mod points myself :(

Can they assert DCMA violation ?

[calcutta001]

Can a spyware company assert that DCMA laws have been violated by terminating the spyware applications running on a machine ? Could the DCMA regulations be abused for such end ?

Re:"Buying" Software

[quantum bit]

That is such a perversion of the original intent of copyright law, it makes me sick.

... and has a name with "Duck" in it, too...

[OmniGeek]

It doesn't take too many functional brain cells to conclude that a program named "SpyMon" that apparently describes itself or is described by others as "remote control software" is, in all probability, spyware. In fact, I think it would take a serious shortage of neurons to NOT draw that conclusion.

Next up: An EULA clause stating "The use of normal caution and/or logical thought proicesses is expressly prohibited in regard to the subject Software."

Computer-based custody battles

[British]

Remember in the days before spyware existed, where those who used your computer was YOU? It seems we now have hundreds of seedy companies trying to eat up our precious processor time and trying to sell you stuff.

And now this company has the balls to come up with this in a EULA?

I say unleash the white hat hackers. The joy of computing must not be ruined by sony's rootkit, or spyware or stupid legal hassles.

email from them

[Anonymous Coward]

This is the email I got back from them after writing them an email. It was replied to within 5 minutes.

Hello REMOVED

Friday, November 11, 2005, 2:10:43 PM, you wrote:

>I have removed your spyware from several machines this year.
>I am going to create a script that removes your software, then open
>source it, then create a website about it. You can't stop freedom of speech with a
>EULA.

Whoever put the program on the machines must have had direct contact
with them. It cannot be installed remotely and does not try to get past
firewalls.

Best regards,
  Anthony anthony@spymon.com

Because EULA stands for.....

[Mayhem178]

....End USER License Agreement. As I understand it, they don't want to use the spyware. Quite the opposite in fact.

Whoa, great idea. I'm gonna genetically engineer a disease, write a EULA for it, and spread it. Then, I'll sue any scientist who attempts to find a cure, or any doctor who attempt to treat it! BRILLIANT!

I've heard that one before

[EdMcMan]

Doesn't their excuse remind you of the message on illegal servers?

If you work for the FBI, disconnect now!

What, you can't arrest me, you weren't allowed to connect to the server!

Not a problem at all

[roman_mir]

Person A installs this garbage on person's B computer. Person A agrees to the EULA, person B does not. Person B is a programmer, detects this garbage on the computer and analyzes it, figures out what it is and classifies it as SPYWARE.

While the lawyers are busy on this ...

[DoraLives]

what say we all go over to Spymon's forum and tell them what we think? The thing is woefully underposted and I'm sure they would appreciate our interest in their fine product.

And while you're over there, be sure to check out Anthony's post of Oct 13 in the "DETECTABLE by virusscanners/antispy-software" sub board. I just know that Anthony is looking forward to hearing from everyone and is seeking friendly folks to keep him company.

The end of civilization

[Anonymous Coward]

So, what these people are saying is that consumers are not allowed to be protected from bad products. Companies could make cars without brakes or seatbelts and post a notice that the government may not inspect their vehicles. Food companies could package rotten corpses as "Yummy-time barbeque" and simply write on the container that the contents can not be used in disease research.
      I'm more than willing to contribute to a legal-defense fund to squash this lawsuit.

Re:The end of civilization

[doubledutchdesigns]

THERE IS NO LAWSUIT!!!

What has this got to do with bad products?

Unbelievable

[Stupor Man]

Obviously this companies lawyers think they have a case. However, I believe most judges would turn the table on the plantiff and have them demonstrate exactly what it is that their software does. Judge: So...this boils down to your company is seeking damages because the defendant is helping people remove your software, um, software that reports to you things that the defendants clients may not want you to know? Plantiff: Yes sir. Yeah, that's gonna win the heart and mind of the judge. NO WAY will this be a winner.

Re:Unbelievable

[doubledutchdesigns]

There is no lawsuit. Please read: http://yro.slashdot.org/comments.pl?sid=167981&thr eshold=-1&commentsort=1&tid=123&tid=172&tid=17&mod e=thread&cid=14007013

uploaded a copy to the anti spyware company?

[eudas]

they probably did it just to hurry this whole issue along. see also: giving someone enough rope to hang themselves.

maybe we'll find out just how legal EULAs are after all.

eudas

Re:Asshole is right. Look at this...

[Anonymous Coward]

Ever wanted to be a hacker like in the movies?

Oh, advertising your product as a tool for criminals is just begging for legal action.

I think ConterSpy should be CounterSpy

[flokati]

I think ConterSpy should be CounterSpy.

If anyone wants to conter this post, feel free.

My new Eula

[wwonka74]

By viewing this text you agree to break and no longer be bound by an EULA that you have clicked through just to test software to see if it was worth buying. You are freed from any EULA that you might accept in the future as you can "lie" and claim you read and accept the EULA. I also recommend in the future that you use your dog or cats paw to click accept on any and all EULAs so they are the only ones bound by such an agreement.

what a joke!

[Anonymous Coward]

Why exactly do these companies state that this software is spyware?

its not spyware. If its taken as spyware, VNC should be as well..! And remote controlling built in in windows!

And the retrocoder spokesperson has all the rights to sue them even.
He stated they should not download the software, wich they must have done!

My regards, Thefool

Re:If it looks like a duck and sounds like a duck.

[scotch]

What about emacs?

The whole thing makes no sense at all...

[NIN1385]

If I walk down the street and spray paint my neighbor's house, or nail his door open so that intruders may go in and out as they please I would be locked up by the local police department. However, if I was to load spy ware onto my neighbor's computer thus leaving a different kind of entrance open for intruders to roam free, I wouldn't even get a slap on the wrist. The real problem is I don't have to load it on there, he will do it himself.

Bottom Line: STOP DEFACING MY PERSONAL PROPERTY!

These companies are getting away with doing stuff nobody else can do, and why? I don't know, but I wish I was a lawyer.

Definition of EULA

[Bonewalker]

...Expect Useless Lawsuit Anytime...

Sue me? Yeah... Sue You? Sue who?

[cdtoad]

Sue everybody. I wanna sue the clients you have too.

Re:Asshole is right. Look at this...

[AntEater]

Was I the only one who saw this subject line and though goatse.... ?? I must admit, it made me flinch.

Re:If it looks like a duck and sounds like a duck.

[MindStalker]

They arn't aruging against the classification, they simply state that the anti-spyware company is forbidden from ever installing their software. The rest of the arguement goes, if you classified us, you must have installed us at some point in time.

That's the FRENCH for you.

[Anonymous Coward]

That's the FRENCH for you. Wacky, wacky, wacky.

Re:That's the FRENCH for you.

[Anonymous Coward]

Actually, non. Our lad from spymon (doubledutchdesigns) is a Northern Chappy: Ball, Anthony anthony@doubledutchdesigns.co.uk 329 preston Road Grimsargh Preston, Lancashire PR2 5JT GB +44.08701217399 Eeeh, it's grim oop North.

I wonder...

[SilverJets]

Is the EULA considered a legal contract? If so, wouldn't the work around be to simply have someone under the age of 18 (usually the legal age for entering into a contract) agree to the EULA then pass a copy of the spyware over for research? Since the minor cannot legally enter into the contract, they are not bound by the contract and the person/company receiving the spyware never agreed to the EULA, so they aren't bound by it either.

IANAL, but just wondering if this would work?

Bleh!

[Jerrry]

This is like a bank robber forcing a bank teller to sign a note at gunpoint saying "...by signing this note the bank agrees not to prosecute me."

easy?

[Anonymous Coward]

been using lawyers since I was 9, I like lawyers. Lawyers make my life easy.

If you have needed lawyers since age 9, I would be fascinated to learn your definition of "easy".

What will be next?

[Too Slow]

Will malicious virus and worm scrip now contain a EULA denouncing that anti-virus products are breaking their intellectual property? Give me a break!

They haven't sued anybody.

[Anonymous Coward]

Man, Slashdot it getting sloppy. I mean, when your only job is to appove posts, you'd think you could spend a few minutes checking them out first.

Re:They haven't sued anybody.

[doubledutchdesigns]

Thankyou, at least one person who seems sensible.

We are not suing anyone. Please can someone at slashdot amend this article?

Re:Ya know...

[qeveren]

You're not teaching the target anything by killing them. But that's not the point; you're teaching those around the target. :)

what is spyware?

[decoder]

It is my understanding that spyware is software that is installed without the user's permission or knowledge. It sounds like this application is intentionally installed by one user to spy on another. So does this actually count as spyware even though it is used to spy?

Re:what is spyware?

[The Cisco Kid]

If it is installed by someone other than the owner/primary user of the machine in order to spy on the person that is the owner, yes.

Of course, the the owner/primary user isn't smart enough to not install vulnerable proprietary OS' on their machine in the first place, then they deserve whatever they get. The fact that 'spyware' even exists as a category of software is telling enough.

My defense scenario

[Skapare]

The following scenario may be more defendable in court. I am not a lawyer, nor do I have a briefcase or fins, so I cannot advise whether this could actually work. The scenario goes like this:

Someone who did download the spyware software is having problems with their computer. That spyware software may, or may not, have anything to do with the problem. They bring their computer to you to diagnose. You do the diagnosis and discover numerous programs present that are performing unexpected activities that appear to be spying. You notice specific signatures about these programs in order to detect if they are present. You implement spyware detection software that can recognize each of these programs. You have never agreed to any EULA from any of these spyware companies.

The legal issues that can still be present include that you may still be attached to the obligations of the owner of the computer, since they cannot pass on to you any rights to do beyond what the EULA specifies is not passed on to them in the first place, and include that the very signature may somehow be considered a copyright violation, even if it is a cryptographically strong checksum.

Re:If it looks like a duck and sounds like a duck.

[Bender0x7D1]

Unless it is a duck.

Or does that mean all ducks are witches? *Looks suspiciously at ducks on nearby pond.*

Re:If it looks like a duck and sounds like a duck.

[Deanasc]

I'm so glad you didn't add taste to that list.

Clarification from Sunbelt

[Alexeck]

Just to clarify -- we are not being sued. We received a demand to remove their product from our database. I've blogged about it here http://sunbeltblog.blogspot.com/2005/11/retrocoder .html Alex Eckelberry Sunbelt

Re:Clarification from Sunbelt

[doubledutchdesigns]

At least we agree on something... ;)

I've been trying to get this Slashdot article amended - but nobody here is apparently listening - maybe you will have better luck.

Looks like you have a lot of supporters (based on the various death threaths we have had) and ideally we could come to some sort of compromise where antispy/antivirus software would tell the user that (if its a commercial program) that the "trojan" is a non-destructive commercial program. In return the commercial software could tell the anti-virus software house how to safely delete it and put a marker so it will not return.

What do you think?

Re:Clarification from Sunbelt

[Alexeck]

Death threats? Oh dear. We already largely do what you're discussing -- we detect the program and provide information on it, but the default action is not to remove it -- the user actually has to tell the program to remove your software. If the program is actually wanted, I can't fathom why a user would remove it. We're just telling them it's on the system and giving them the choice to remove. Alex Eckelberry

Re:Clarification from Sunbelt

[doubledutchdesigns]

Thanks for the clarification, I will get in touch with you via email in the next week or so about our side of the bargain.

Re:Clarification from Sunbelt

[splatter]

"Please remove our program from your detection list or we will be forced to take action against you"

Sounds like a threat to sue to me... why pussy foot around it. They are hiding behind the EULA and have threatened you with a law suit. Not a reason to send death threats, but then again anyone using these tactics I wouldn't believe any threats were sent except the one he used against YOU.

Don't cave go with your original gut feeling. You are right, they are wrong and are SPYWARE.

i downloaded your product, please threaten to sue me.. please..... I dare you.... double dare you.... nahne nahne bobo.... (see how childish this sounds?)

Re:Clarification from Sunbelt

[Alexeck]

No worries, no intention of caving in. I was only clarifying the technicality ;-)

Re:Clarification from Sunbelt

[Anonymous Coward]

There.

Now why didn't you do that before you launched into a cartoony legal tirade? A few well chosen civil words between people would have sorted this fiasco out.

Maybe they never downloaded it in the first place

[Skapare]

Maybe they never downloaded it in the first place. Maybe they are acting on the basis of experience that is typically gathered by a practitioner of the field who also works to diagnose malfunctions in client computers where previous detection efforts have failed. This would not necessarily mean your software caused any such problems, but rather, your software may have co-existed on a machine with previously undetected malware which was also performing similar spying actitivies, although for malicious intentions. On the basis of these activities, they would never have agreed to your EULA in the first place as they would never have downloaded a copy of the software.

The ability to detect software like yours, which presumably has no ill-intent, is still necessary, IMHO, because of the existant possibility of ill-intended installation by other parties, such as kids spying on their parents first (it happens), or one spouse spying on the other in domestic issue civil cases (it happens a lot). Unless you can prove that your software has unbreakable facilities that prevent anyone from installing the software except in cases where it would involve only legal spying (e.g. parents spying on kids), I don't think you have a valid basis for demanding that your software be exempted. And I do not see how the software is capable of evaluating the domestic role of the person doing the installation.

My real concern has nothing to do with your software. It has everything to do with all spyware in general, and the establishment of legal defenses that they all may use if you take this matter to court and prevail. Such a ruling would be universally harmful to everyone.

In an unrelated issue, how is your software going to spy on kids that are skipping Windows and booting up a Knoppix CD instead to get to the internet to surf for 7un3z, w4r3z, and pr0n? You know kids are doing it, and not just the smart ones. Do you warn parents that your software cannot detect all these cases?

Obvious.

[Bezben]

Retrocoder just needs to stick a clause in their eula: you aren't allowed to use this program to check if your program is detected.

Re:If it looks like a duck and sounds like a duck.

[Geekboy(Wizard)]

If it looks like a duck, and sounds like a duck, then it probably tastes good with orange sauce.

the article continues....

[Anonymous Coward]

According to the EULA, SpyMon can not be used in 'anti-spyware research,' and detecting it is therefore a violation of it. 'In order to add our product to their list, they must have downloaded it and then examined it. These actions are forbidden by the notice,' a RetroCoder spokesperson said."

he then strangled a puppy, punched a baby in the face, and went back to sexually harrassing his co-workers.

I'd think of something witty to say...

[Orrin Bloquy]

...but I can't find a suitable rhyme for "douche turd."

Notices are not contracts

[Arandir]

'In order to add our product to their list, they must have downloaded it and then examined it. These actions are forbidden by the notice,' a RetroCoder spokesperson said.

A notice is not a contract. It is not any form of agreement. Heck, it barely qualifies as a legal mechanism. Why this company thinks a notice contractually binding is unknown. Maybe their lawyers flunked out of lawschool? Maybe they had to go all the way to Elbonia to pass the bar exam?

This goes beyond the unilateral "click-thru" licensing of other companies. I'm going to name this one "we-said-so" licensing.

The installer is a trojan.

[Logikality]

Well I just tried to download the installer and McAfee detected BackDoor-CTQ.dr so does that mean McAfee should be in trouble as well?

Re:My god - Yes they can win

[Nom du Keyboard]

Oh, don't worry... they can't possibly win this case.

Yes they can win. They can win by harassing, intimidating, and causing the anti-spyware companies to spend so much money defending themselves that they either go out of business, or leave companies like this one's products off their list.

The only way they can't win is if they are heavly fined for filing frivilous lawsuits, and the money given to the defendants.

The Victim Didn't Agree Means a True Legal Mess

[Nom du Keyboard]

So what if the Victim doesn't agree to the EULA for the software running on their computer? Does this mean that the software cannot be used to spy on the Victim until they agree to the EULA, and must be removed.

Not a funny question at all when you consider the ramifications of one person installing software on a computer and agreeing to an EULA that a second person then uses. How do you sort this out?

Correction

[Orrin Bloquy]

You're using the "Jersey Girl" defense. Genius, really.

Re:If it looks like a duck and sounds like a duck.

[asb]

You couldn't have chosen a better subject line. :)

The fool who started the law suit said: In order to add our product to their list, they must have downloaded it and then examined it. These actions are forbidden by the notice,

Not exactly so. Most virus scanners are smart enough to notice viruses even though they are not in listed in the virus databases. They do it by analyzing the executable.

So, if the program looks like spyware and acts like spyware, a smart virus scanner would detect it as spyware even though the programmers have never seen that particular spyware. The makers of F-Secure claim that their product can do this to some extent.

Re:If it looks like a duck and sounds like a duck.

[lantenon]

You sure it's not a penguin?

Re:If it looks like a duck and sounds like a duck.

[XXIstCenturyBoy]

Or they might just have read their webpage.

"SpyMon will allow you to watch other people's computers as they use them. You see all keys pressed as they are pressed and you can even view windows and webcams!"

It doesn't take a genius to classify this application as a spyware when the people doing it call it a software for spying.

what of the plaintiffs eula?

[dilvish_the_damned]

Battle of the eula's?

The whole concept that usage can be dictated in such a fasion is frightening and probably destructive overall.

"I see your eula is as big as mine. But do you know how to use it?"

Re:If it looks like a duck and sounds like a duck.

[arodland]

But you still presumably need to get the program and look at it to know how to detect it, which is what their argument is with. Sure, there's also heuristic detection, but suppose that this kind of EULA crap stands up, and then all the spyware authors add it. Then you might not even have enough data to form a good heuristic base. With their EULAs validated, and the "opposition" made impotent, they'd basically have free reign to hijack computers.

With any luck, it won't go that far, and instead we'll see a significant blow to the (perceived) power of EULAs. But in seeing as how I live in the US, I don't know whether to expect that much sense.

client installed EULA

[McFly777]

My guess is that in this case the client would have infringed the EULA by hiring the company to do something that the client "agreed" not to do. The deep pockets principle (as well as visibility) still gets the company sued, until they are able to deflect it to the "client".

Standard Disclaimer applies: IANaL

MOD PARENT DOWN!

[CharonIDRONES]

Read your own words.

They are filing suit in the US

I think it's because they'd be laughed out of the court in the UK, but yet it could actually be a serious case here. It has gotten to the point of being utterly ridiculous.

-Brandon

Re:Maybe they never downloaded it in the first pla

[serial_crusher]

In cases of kids spying on parents, etc etc: You probably need admin access to the computer in order to install the stuff. So don't give your kids root.

In an unrelated issue, how is your software going to spy on kids that are skipping Windows and booting up a Knoppix CD instead to get to the internet to surf for 7un3z, w4r3z, and pr0n? You know kids are doing it, and not just the smart ones. Do you warn parents that your software cannot detect all these cases?

Disable boot from CD, password protect the BIOS. Would that do the trick?

I agree, their manual should say that. (I haven't RTFMed, so not sure if it does).

What, NO Leads Between SunBelt and Scieno Clams?

[Ded Mike]

OK. SCN and spam, too. Links follow:

http://news.umailcampaign.com/message/102099.aspx

http://it.slashdot.org/comments.pl?sid=158250&cid= 13260692

http://home.snafu.de/tilman/prolinks/

"Stu Sjouwerman (FSM, $5000 donation to the IAS, WISE 2001 directory) is also known as Warm Regards Stu was vice-president of PSS, Inc (now defunct) and is Chief Operating Officer of Sunbelt Software Distribution (view corporate information), a Clearwater-based software distributor listed in the WISE 1999 list with Stu as contact. Stu also has the Clearwater-based company 3A Data and is the author of the book Make Money On The Internet. Watch him searching for witnesses for Scientology without mentioning it."

Just Patch the EULA

[Anonymous Coward]

How about some crackers make some heuristic algorithms to detect the EULA screen and just skip it. Then we don't have to agree to anything and can reverse engineer at will.

Vigor's EULA

[Piquan]

From Vigor's EULA, in a scrollbox that wouldn't let you scroll:

END-USER LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: This End-User License Agreement (EULA) is NOT a legal agreement between you (either an individual or a single entity, so take that Fare) and some other unnamed entity for whatever product we feel like it applies to. This includes media, printed materials, online or electronic documentation, products purchased because of or used with the product, or anything that happens to be nearby (SOFTWARE PRODUCT). By installing, copying, downloading, accessing, using, thinking about, hearing of, or being in the same universe as the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, you can try to get your money back, but let's face it, that ain't gonna happen anyway, so why bother?

SOFTWARE PRODUCT LICENSE

The SOFTWARE PRODUCT is protected by copyright laws, international copyright treaties, several vaguely defined IPO laws and treaties that are easily clouded in a court of law, and a guy named Bubba with a shotgun.

1. GRANT OF LICENSE.

This EULA grants you the following rights:

• The right to do whatever the publisher says.
• Nothing else.

2. RESPONSIBILITIES OF THE USER.

By agreeing to this license, you agree to the following:

• Give the provider your firstborn son, should the provider deem such is necessary and valuable.
• Become Bill's towel boy for life.
• Whatever else we think of later on, you already agreed to from the shrink-wrap license anyway

THIS TECHNOLOGY IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, INTERNET SERVICE PROVIDERS, TECHNICAL SUPPORT LINES, NETWORK OPERATIONS CENTERS, IN WHICH THE FAILURE OF THE TECHNOLOGY OR NORMAL DAY-TO-DAY OPERATIONS COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

LIMITED WARRANTY

You have no warranty rights under this agreement whatsoever, expressed or implied. We don't want to hear from you if you've got any problems. We don't give you a number to call for just that reason. You've got to call the poor schmuck who sold this to you; they have to support you themselves, and we won't help them. We don't care. We don't have to.

If you're reading this because it's being displayed as part of the Vigor startup sequence, then please let me know by email at joelh@gnu.org. This dialog box is intended to be long enough so that it won't be displayed on the screen.

Exception: I know that you can click in the text box, and then hold down the down arrow key, and thus bypass the scroll overrides. I'll figure out a way to keep that from happening later.

The first paragraph refers to "Fare", who had made a minor splash the week before Vigor came out by claiming he'd found a loophole in the GPL. The Bill's towel boy crack is from Dilbert. The "not fault tolerant" bit is right out of the Java license; I couldn't think of any way to make that bit funnier.

MOD UP

[Grishnakh]

Hear, hear. Very well stated.

Two sides of your mouth

[TigerTime]

This is absolutely hilarious

Our problem is that companies like Sunbelt do not properly look at software before they blacklist it..........This shows that either they do not examine programs properly or that they ignore copyright law.

I have several points.
1. If you hadn't BLOCKED them from "inspecting" your software in the first place (per your EULA), then they might have actually "properly looked at your software"!! If you block them then they can't examine it now can they?

2. Since you mention that "anti-spyware companies can't look at your software", then that probably threw up a red flag to them. Where there's smoke, there's fire. And by coming out and flat out saying "anti-spyware companies can't look", you're making them blacklist you by default.

3. If they got a computer that had some files they didn't recognize on it, and looked up their origin via the internet, then they aren't tampering with your software. They may very well not have seen any EULA anyway. All they needed to see was it was a "spying" program and that "anti-spyware companies aren't allowed to examine it". So whenever a computer has those files, mark them as spyware.

To me, you guys set yourself up for this. If someone doesn't want me to look at something they are trying to sell, then I'm going to tell everyone else it's probably bad news.

Are all Spymon employees this stupid?

[dave1212]

you make spyware. A program that allows someone to spy on others is called spyware. (dumbass)

I'll be posting a notice, as I did when Claria/Gator tried the same bullshit, on most of my sites: "Spymon is spyware. Stay far away from it and check your computer for it."

In this case, I may even be interested enough to post instructions on how to add your software to the 'evil' list in virus/spyware removing programs.

Seriously, you've gone about this all wrong.

You Don't Understand Copyright Law

[E 99]

Copyright laws give you certain rights in relation to your software -- in particular the right to prevent someone from copying or retransmitting your software to a third person or group of people without your permission. THEY DO NOT give you the right to either a) prevent people from inspecting your software with a particular intent in view, or b) a prevent a certain general class of people from accessing your software. -- If you could do that, then Lauren Hill could put copyright agreements on all her albulms that say that white people can't listen to them!

EULAscan

[d88]

EULAScan is a new site for using distributed human judgement in a collective project for watchdogging these kinds of companies.

Legal Spyware vs. Legal Voice Recording

[thirty2bit]

The courts need to impose the same restriction on these so-called legal Spyware/logging apps that they do on voice recording: the app has to generate a "beep" every 60 seconds to let you know it is monitor and recording your actions.

Tombs with piped-in music. How classy! -- Garrret, Thief: The Dark Project

Re:If it looks like a duck and sounds like a duck.

[Anonymous Coward]

If it was a penguin it would have 'Property of the Zoo' stamped on it!
. .. ...
OH, INTERCOURSE THE PENGUIN!!

FTFA: Copyright not suitable to this claim

[Unequivocal]

I'm surprised everyone seems to be talking about EULA as valid contract. Regardless of that, the idea that copyright ownership could prohibit the behavior specified in the EULA is questionable. Two parties could certainly create a contract with terms that prevent this behavior - and a EULA might be considered such a valid contract, or it might not.

But, two parties could/would not use copyright law as the basis for this contract - there are better lines of legal reasoning. Seems like these guys (among many others) have overloaded copyright provisions. Hopefully this will go to court, and fix this EULA mess, at least insofar as it's based on copyright ownership.

FTFA:

'Copyright law plainly wasn't designed for what RetroCoder is using it for, said Christopher Brody, a partner at Clark & Brody in Washington, D.C. "Copyright laws prevent copying, not examination, and I question the enforceability of such a clause based on copyright ownership," he said.'

Well...

[Venim]

This was so rediclious that i decided to email them, everyone here should too. :)

Subject: wow you guys are assholes
Body: good luck with your baseless lawsuit, rot in hell

http://yro.slashdot.org/article.pl?sid=05/11/11/06 8222

Re:Well...

[doubledutchdesigns]

Please read the original article before writing such rubbish. Slashdot got it wrong - we are NOT suing them!!!

Re:Well...

[lifespan]

Please read the original article before writing such rubbish. Slashdot got it wrong - we are NOT suing them!!!

No, you're not sueing them, only impotently threatening to. Here's a copy of the threatening complaint you issued to a company that is trying to protect it's users from peeping toms using your software to invade their privacy:


Reason for submission: If you read the copyright agreement when you downloaded or ran our
program you will see that Anti-spyware publishers/software houses are
NOT allowed to download, run or examine the software in any way. By
doing so you are breaking EU copyright law, this is a criminal
offence. Please remove our program from your detection list or we
will be forced to take action against you. Thankyou,

Anthony Ball



I scoff at your indignant reply to the parent, given your deceptively omitted hostile legal intentions.

Re:Well...

[doubledutchdesigns]

http://yro.slashdot.org/comments.pl?sid=167981&thr eshold=1&commentsort=5&tid=123&mode=thread&cid=140 09674

If you read the text on SlashDot linked to above you will see that we are not unreasonable, we just don't want our app that people have bought to be deleted without the owners permission or knowledge - as has happened with numerous "big" companies.

When contacting these "big" companies - including Symantec about the problem they simply refuse to reply - we initially tried to contact them all about 9 months ago in order to bring about some kind of cooperative agreement, with information about detecting out program as a commercial keylogger and about uninstalling our program safely (if the user decided to do so).

Our point is that commercial programs are different than trojans written by criminals. It is fair that they are pointed out by the anti-virus/trojan program, but not fair that they are automatically deleted. The user should be told that they are a commercial keylogger or similar and the default action should be to not delete. AVG by comparison deleted them without informing the user.

We are open about what ports are being used and we do not try to bypass firewalls or shutdown anti-virus programs. All are easily possible as you probably well know and we feel that comparing it to programs written by criminals is unfair.

We, as a company, are very easy to contact - if we had been contacted/replied to by the anti-virus companies (initially - before we had to put the download notice up) we would have told them how to safely uninstall the client program, and we would have also told them of a special flag - that if present would stop the client from installing again in the future. They would also have been given information that would have told the user WHO was attempting to spy on them! The condition would have been as above - that the user be informed that it was a commercial program and the default action would have been not to uninstall.

Sunbelt will soon be given this information in the hope that other companies will follow in the way they list the program (if detected).

Re:Asshole is right. Look at this...

[Anonymous Coward]

Is the company for real, they accept payment by PayPal, serious companies take credit cards. Looks like a one man and his dog operation trying to make more money from a law suit than they make from their software.

Was it ever signed?

[epee1221]

That's not much of an issue unless the client agreed to the EULA when the spyware was planted on his/her machine. From what I understand, spyware doesn't like to make itself so obvious.

What the hell is "copyright theft"?

[phliar]

...get the UK police authorities involved with Sunbelt over copyright theft.

You mean Sunbelt stole the copyright to the program? Interesting. How does one steal a compyright? Is that something like stealing the deed to a house?

Retrocoder Limited as the copyright holder, has the right to say who may or may not have its program. If someone has its program without permission, are they not guilty of a criminal offence?

For example, if you have a copy of Windows without MicroSofts permission, is this not a crime?

Of course the law in the UK is different from that in the USA, but since US law is derived from UK law, it's unlikely there's any significant change -- especially copyright law in this Brave New Post-Berne-Convention World. Consider this: my friend Joe gave me a computer, and it has Windows installed on it. Did I ever get permission from Microsoft? No. Am I breaking the law? No. Does Microsoft have the right to say who Joe can give the computer to? No. Does Microsoft have the right to say "only white christian men can use Windows"? No.

What an idiot.

Re:Asshole is right. Look at this...

[doubledutchdesigns]

What is wrong with PayPal, with paypal customers know that we are not scamming them for credit card details.

btw - did you actually read the original article - we are not suing them - slashdot got it wrong!!!

Re:"Buying" Software

[PGC]

However, when I buy a book, I make a transaction with the store, not the author or publisher. If the publisher or author ever show up on my doorstep, I have every right to slam the door shut in front of their noses. They have no 'rights' to see what I have done with that book (if maybe I put it in a non authorized bookcase, or maybe I bought it in Japan and am now 'violating' their region-code ). All I have to do is obey the laws of the country I live in (and its copyright laws) and the properties of the transaction I made with the store.

Re:If it looks like a duck and sounds like a duck.

[fuzznutz]

But if it weighs the same as a duck, it must be a witch.

Burn Her!!!!

Hot Damn!

[dwandy]

dammit, I hope this goes to court and the spy-guy wins ... then we can finally start moving to add more useful clauses to EULAs, and us poor software writers can finally scratch out a proper living...