Avira Wins Case Upholding Its Right To Block Adware

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Avira Wins Case Upholding Its Right To Block Adware

Posted by samzenpus on Monday June 29, 2015 @08:49AM from the keeping-the-door-closed dept.

Mark Wilson writes: Security firm Avira has won a court case that can not only be chalked up as a win for consumer rights, but could also set something of a precedent. Germany company Freemium.com took Avira to court for warning users about "potentially unwanted applications" that could be bundled along with a number of popular games and applications. Freemium.com downloads included a number of unwanted extras in the form of browser toolbars, free trial applications, adware, and other crapware. Avira's antivirus software warned users installing such applications; Freemium took objection to this and filed a cease and desist letter, claiming anti-competitive practices. But the court ruled in Avira's favor, saying it could continue to flag up and block questionable software.

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Freemium was ordered to pay all court costs. by fustakrakich · 2015-06-29 08:52 · Score: 5, Informative

Most excellent!

--
“He’s not deformed, he’s just drunk!”
1. Re:Freemium was ordered to pay all court costs. by Anonymous Coward · 2015-06-29 09:06 · Score: 1
  
  Hopefully, they where not offered a chance to buy upgrades and extras (like gavels, judges or supercharged courtclerks), but they have the option to go the long way around to an appealscourt...
Precedent by Anonymous Coward · 2015-06-29 08:54 · Score: 1

The concept of "Precedence" in law is a US concept, not a German(y) one.
1. Re:Precedent by fuzzyfuzzyfungus · 2015-06-29 09:14 · Score: 2
  
  Even without a formal system of precedent, and treating prior cases as authorities to be cited, I'd imagine that the outcomes of past cases, and the various arguments and concepts employed, likely have an influence on future cases, at least those where the person overseeing them is undecided or has no particular opinion on the matter.
  
  At least in the US, that seems to be a factor when(for some reason of how the courts are structured and arranged) a given court decision is not official precedent for the purposes of another court; but still has a decent shot at being cited if it framed the issue persuasively. It's not 100%, it might also be mentioned in the process of vehemently disagreeing with the decision of the other court and politely-but-brutally rubbishing their line of thought; but even without binding legal obligation to consider a given case, sufficiently similar past cases tend to help shape future thinking on the matter(as well as encouraging or discouraging prospective litigants).
2. Re:Precedent by Opportunist · 2015-06-29 09:15 · Score: 4, Insightful
  
  While true, judges tend to follow the ruling on the table. If only to appear consistent and not wanting to contradict their peers.
  Twice so in a matter where most judges don't have the slightest inkling of an idea what's going on. Like, say, "anything computer/internet".
  
  --
  We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
3. Re:Precedent by wonkey_monkey · 2015-06-29 09:17 · Score: 1
  
  So? Can German courts not set precedents for future German decisions?
  
  --
  systemd is Roko's Basilisk.
4. Re:Precedent by Kkloe · 2015-06-29 09:24 · Score: 1
  
  there is one, its not just official but most courts abide by it, and if they push it to the eu court then after that the outcome will be set as precedence for the whole of europe
5. Re: Precedent by Anonymous Coward · 2015-06-29 09:30 · Score: 0
  
  Apparantly it has some precedence. Wikipedia: In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.
6. Re:Precedent by gnasher719 · 2015-06-29 09:34 · Score: 1
  
  While true, judges tend to follow the ruling on the table. If only to appear consistent and not wanting to contradict their peers.
  It's also a lot less work to find a case that is quite close and copy what the judge in the other case found. Instead of figuring all the details out himself, which is hard work, the judge just needs to check that all the details of the other court case match.
7. Re:Precedent by dunkelfalke · 2015-06-29 09:46 · Score: 1
  
  Only constitutional courts can do that (because their rulings can become laws). Generally, German judges are only subordinate to the law, this is why precedents aren't binding.
  
  --
  "It's such a fine line between stupid and clever" -- David St. Hubbins, Spinal Tap
8. Re:Precedent by dunkelfalke · 2015-06-29 21:05 · Score: 1
  
  Precedent cases can be used as a source of argumentation by the lawyer, but ultimately it is up to the judge to decide how to interpret the law. This is why similar cases can have completely different rulings, but usually haven''t, since the law framework, on which judges base their decisions, is generally the same.
  
  --
  "It's such a fine line between stupid and clever" -- David St. Hubbins, Spinal Tap
this really went to court by luther349 · 2015-06-29 09:02 · Score: 5, Insightful

i tell you we are fucked for this to even need a court case of course we can flag and block things we don't what on your pc.
1. Re:this really went to court by UnknownSoldier · 2015-06-29 09:03 · Score: 2
  
  I know.
  Like WTF? We need a court to determine what the hell I can block?
2. Re:this really went to court by Anonymous Coward · 2015-06-29 09:07 · Score: 0
  
  Oh, it's not so bad really. Some people need a court case to grant them full personhood, right here in the States no less! How fucked is that?!
3. Re:this really went to court by jopsen · 2015-06-29 09:08 · Score: 4, Interesting
  
  i tell you we are fucked for this to even need a court case of course we can flag and block things we don't what on your pc.
  Relax... You can sue over many things; that doesn't imply you have a snow flakes chance in hell of winning...
  They were probably just hoping avira would settle, and add an exception for freemium.
4. Re:this really went to court by Opportunist · 2015-06-29 09:16 · Score: 3, Interesting
  
  No, we need a court to determine whether a company can block something for you.
  Which seems odd considering that Net Nanny and the likes have been offering essentially the exact same service for years now and nobody bothered to complain.
  
  --
  We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
5. Re:this really went to court by JustAnotherOldGuy · 2015-06-29 09:20 · Score: 1
  
  Report to Consumer Reeducation Camp #462 at once, Citizen! And no more defaming our Beneficent Coporate Masters (blessed be their names).
  
  --
  Just cruising through this digital world at 33 1/3 rpm...
6. Re:this really went to court by JustAnotherOldGuy · 2015-06-29 09:21 · Score: 2
  
  But, but, our business model depends on being able to exploit you!
  
  --
  Just cruising through this digital world at 33 1/3 rpm...
7. Re:this really went to court by Anonymous Coward · 2015-06-29 10:32 · Score: 0
  
  It's perfectly fine that this went to court. This is a civil suit, which really has no minimum standard for what can go to court. If the case is completely without merit, the judge rules for the defendant and awards them legal fees out of the plaintiff's pocket.
  Which is what happened here. This is the law working exactly the way it should.
8. Re:this really went to court by luther349 · 2015-06-29 12:01 · Score: 0
  
  they block it or you yes but you install it to do just that because it would be very time consuming to do so on your own.
9. Re:this really went to court by Opportunist · 2015-06-29 19:06 · Score: 1
  
  Again, same for either program. Both are installed by the user to filter out unwanted content, with the program's maker in the end deciding what's considered "unwanted" (the user only gets to set a category, i.e. "porn" in one and "ad junk" in the other).
  
  --
  We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
10. Re:this really went to court by Anonymous Coward · 2015-06-29 21:40 · Score: 0
  
  You can? Who are you, David Cameron?
11. Re:this really went to court by Joce640k · 2015-06-29 22:57 · Score: 2
  
  Net Nanny and the likes have been offering essentially the exact same service for years now and nobody bothered to complain.
  Presumably Net Nanny never came to the attention of whatever fuckwit is in charge of freemium.com
  This isn't about people's rights or the right to do legitimite business, it's about fuckwits who think it's perfectly OK to infest your PC with sluggish, personal-data-stealing crapware using whatever means they can legally get away with. Just so long as they can get a new car out of it, that's fine.
  Me? I'm now thinking of registering my copy of Avira.
  
  --
  No sig today...
12. Re: this really went to court by ZeroWaiteState · 2015-06-30 04:29 · Score: 1
  
  Yes, because for years courts have upheld the notion that your computer doesn't actually belong to you (technically the hardware maybe, but definitely nothing stored on it). However, they have to decide who it actually DOES belong to, and there's too many corporations out there staking their assinine claims. Be prepared to witness more of this in the future, until the courts finally figure out how stupid their position is.
13. Re: this really went to court by ZeroWaiteState · 2015-06-30 04:36 · Score: 1
  
  There is no such thing as a certain outcome in a court case, particularly if the other side has a lot of money to spend and can file motions continually. The SCO case took over 10 years. If you run out of money for attorney fees you lose by default.
14. Re:this really went to court by UnknownSoldier · 2015-07-01 07:11 · Score: 1
  
  That sums up fazebook 100%. :-/
15. Re: this really went to court by jopsen · 2015-07-08 07:55 · Score: 1
  
  There is no such thing as a certain outcome in a court case, particularly if the other side has a lot of money to spend and can file motions continually. The SCO case took over 10 years. If you run out of money for attorney fees you lose by default.
  True, nothing in life is sure...But the SCO case was in the US, I'm not sure it's relevant in the German court system.
Everyone has an opinion on malware by Anonymous Coward · 2015-06-29 09:04 · Score: 4, Insightful

Browser Search Toolbars - it's a matter of provider. Personally I prefer to not have any toolbars because I don't trust those vendors. Other articles state that the current landscape of BHOs pegs about 80%+ of them as having malware-like behaviors, including:
- Deliberate opt-out mechanics with unclear opt-out instructions.
- Deliberately sabotaged uninstallers (so they can't be easily uninstalled).
- Installer tripwires (so they automatically reinstall if removal is attempted).
- Obfuscation to make them hard to detect.
- Or just plain drive-by installation.
If your software has to attempt to protect itself from my attempts to uninstall it then try making a case for why it might be wanted. The industry is living in denial if it can claim software we're all trying so hard to remove is "wanted". So...If I can assert that then why can't any random company say the same? Or is this a case of "it's only legal to say it if no-one is listening"? Companies like Freemium.com are the reason computers aren't any fun anymore - I spend more time fixing machines because of disingenuous jerkoffs like those.
1. Re:Everyone has an opinion on malware by JustAnotherOldGuy · 2015-06-29 09:22 · Score: 1
  
  Zero toolbars here, period. I can bloody well run a search without a toolbar feeding me craptastic consumer-oriented results.
  
  --
  Just cruising through this digital world at 33 1/3 rpm...
2. Re:Everyone has an opinion on malware by Anonymous Coward · 2015-06-29 09:32 · Score: 0
  
  Also fake download buttons on webpages that make it hard to find the real download link.
3. Re:Everyone has an opinion on malware by Anonymous Coward · 2015-06-29 13:57 · Score: 0
  
  Has anyone ever intentionally downloaded a search toolbar? It's hard to imagine that someone woke up one day and said to themselves "my browser search toolbar is insufficient for my needs. I would like to install another from a the shadiest company out there. Maybe later I'll get a swastika tattooed on my forehead and see if I can find a guy a on Craigslist to cut my balls off."
4. Re:Everyone has an opinion on malware by Anonymous Coward · 2015-06-29 20:18 · Score: 0
  
  if the software does any of these
  - Deliberate opt-out mechanics with unclear opt-out instructions.
  - Deliberately sabotaged uninstallers (so they can't be easily uninstalled).
  - Installer tripwires (so they automatically reinstall if removal is attempted).
  - Obfuscation to make them hard to detect.
  - Or just plain drive-by installation.
  the company owner should be kidnapped, tortured, forced to see his family die, then killed. All put on HD video and on the internet, as an example of what may happen if you pull that shit off. After a couple of these surgeries, problem will go away.
I'd certainl yhope so... by fuzzyfuzzyfungus · 2015-06-29 09:06 · Score: 4, Insightful

Under what legal theory would it be forbidden to offer a product that blocks shitware? Even if we grant that this 'freemium.com' must be tolerated as legal-but-sleazy, rather than dragged out and hung from a lamp post; is there some sort of 'right to be installed' that software possesses that nobody told me about?

It seems about as silly as arguing that throwing away junk mail without opening it is abridging the spammer's right to free speech.
1. Re:I'd certainl yhope so... by Len · 2015-06-29 09:18 · Score: 1
  
  is there some sort of 'right to be installed' that software possesses that nobody told me about?
  They were probably trying to get the court to invent one, similar to the EU's ridiculous "right to be forgotten".
2. Re:I'd certainl yhope so... by TsuruchiBrian · 2015-06-29 09:18 · Score: 2
  
  I don't think the blocking of shitware is a problem per se. It seems that the objection is to the labeling of the products of others as "shitware". There are apparently rules that forbid Coca cola from saying "You should drink coke instead of that diarrhea water called pepsi".
  I understand the motivation for these sorts of laws, but they do lead to cases like this, where our ability to call a turd "a turd", is questioned.
  I would much prefer a world where there was freedom of speech even in advertising, and I will be responsible for determining if pepsi is really "diarrhea water", or whether a browser toolbar is shitware rather than the government. Think of all the human effort and time wasted in legal battles that would be saved. Think of all the kids potentially becoming lawyers, because laws and litigation are how we solve our disputes. Think of all the people who must think "Well if I heard it on the TV or the internet it must be true, because liars lose their court cases", even implicitly.
3. Re:I'd certainl yhope so... by taustin · 2015-06-29 09:27 · Score: 1
  
  I suspect the legal theory goes like this:
  By calling our fine, outstanding product "shitware," you have defamed us.
  Or, possibly, "You encourage others to engage is practices that harm our business, which somehow constitutes some kind of fraud or conspiracy or something."
  Mind you, I agree these people should be publicly whipped for being assholes, but it isn't at all difficult to come up with an internally consistent legal theory to support their claim.
  Fortunately, the court saw fit to spank them for being retards.
4. Re:I'd certainl yhope so... by gnasher719 · 2015-06-29 09:40 · Score: 4, Insightful
  
  Under what legal theory would it be forbidden to offer a product that blocks shitware? Even if we grant that this 'freemium.com' must be tolerated as legal-but-sleazy, rather than dragged out and hung from a lamp post; is there some sort of 'right to be installed' that software possesses that nobody told me about?
  Oh, that's no problem. Freemium claimed (and likely has the numbers) that their income from sleazy installs against the wishes of the computer went down, and that it was due to Avira's software (which they probably also can prove). So Avira _did_ interfere with Freemium's business, there is no doubt about that. The question was whether they interfered in a legal way, or in an illegal way. And the judge said it was legal. I suppose if Avira put up an alert saying "Don't install this, this software will cause cancer" they would have lost.
5. Re:I'd certainl yhope so... by Anonymous Coward · 2015-06-29 10:07 · Score: 0
  
  People were certainly eager to blame Samsung over blocking Windows Update. Is this so very different? I'm not saying I agree with the adware side even one sec, but you know ... double standards and stuff.
6. Re:I'd certainl yhope so... by jedidiah · 2015-06-29 10:12 · Score: 1
  
  ...true. But this is much more like the "Pink Slime" controversy over there in the States. People were not aware of what was going on and reacted quite badly when the cat was finally let out of the bag.
  Legal warfare against the relevant whistle blowers in the news media commenced.
  The offending meat companies claimed damages.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
7. Re:I'd certainl yhope so... by jedidiah · 2015-06-29 10:15 · Score: 1
  
  Was it all uniform though? As an IT guy, I can relate to black listing certain types of updates and preventing Microsoft from just force feeding updates to everyone.
  It's the perpetual problem of Microsoft not really being responsible with the hardware vendor really being the one on the hook. They are likely to suffer for Microsoft's mistakes.
  
  --
  A Pirate and a Puritan look the same on a balance sheet.
8. Re:I'd certainl yhope so... by Joce640k · 2015-06-29 23:08 · Score: 1
  
  I don't think the blocking of shitware is a problem per se. It seems that the objection is to the labeling of the products of others as "shitware". There are apparently rules that forbid Coca cola from saying "You should drink coke instead of that diarrhea water called pepsi".
  "diarrhea water" is a specific term that can be tested and proven false. That makes it libel.
  Stick to subjective things like 'taste' and you'll be fine. eg. You can say "Drink Coke because Pepsi tastes nasty!" with no problem.
  Back to "shitware". That word isn't in the dictionary AFAIK so you ought to be fine calling your competitor's product "shitware".
  "Potentially unwanted applications", the term used by Avira, is very conservative. I'm not surprised the judge tossed the case out and ordered freemium to pay costs.
  
  --
  No sig today...
9. Re:I'd certainl yhope so... by TsuruchiBrian · 2015-06-30 03:06 · Score: 1
  
  What I am saying is that I'd rather live in a world without libel and slander laws (i.e. one with freedom of speech). I realize this comes with the added responsibility of determining what is true or false without help of the courts, but I am willing to accept that. I am also willing to accept that this also means others may lie about me or my products.
10. Re:I'd certainl yhope so... by TsuruchiBrian · 2015-06-30 12:55 · Score: 1
  
  Also you should be able to say "Pepsi *tastes* like diarrhea water", because that is no longer an objective claim. Taste is subjective.
What were the odds? by TsuruchiBrian · 2015-06-29 09:23 · Score: 1

What were the odds that the owner of "freemium.com" is some low-life shitware-peddling scumbag?
1. Re: What were the odds? by Anonymous Coward · 2015-06-29 11:44 · Score: 0
  
  So close to unity so as to be indistinguishable from it.
Avira is a PUP itself. by shihonage · 2015-06-29 09:25 · Score: 4, Insightful

It aces artificial AV tests in performance, because by default, it only scans files by extension, which is a huge security risk. The free version makes annoying advertisement pop-ups. And in my experience it popped out vaguely threatening messages about a vague virus which neither Combofix nor MBAM nor a couple of other AV products could find.

In my experience, all free AV programs are highly suspect in their behavior, by their nature and goal. They're full of upsells, they will passive-aggressively threaten you, they will try and install PUPs themselves... etc.
1. Re:Avira is a PUP itself. by Anonymous Coward · 2015-06-29 11:41 · Score: 1
  
  >In my experience, all free AV programs are highly suspect in their behavior, by their nature and goal. They're full of upsells, they will passive-aggressively threaten >you, they will try and install PUPs themselves... etc.
  Not all free AV programs are like this. MS Security Essentials do not produce any popups unless they are relevant to a detected software.
2. Re:Avira is a PUP itself. by Anonymous Coward · 2015-06-29 13:39 · Score: 0
  
  I found a few years ago that Avira flagged .EXEs using certain packer algorithms, regardless of the content. Apparently they and other antivirus vendors decided long ago to throw the baby out with the bathwater, and flag all packed .EXEs as trojans, just because a few well-known trojans used a certain packing algorithm.
  It's pure laziness on their part -- depack the damn thing and analyze the REAL contents. Yes, lots of 'cracks' etc. use a few packers, but legit archives out there also use those packers.
  I have trouble unconditionally giving the antivirus vendors a 'pass' for flagging keygens/cracks/etc. as bad just due to their packing algorithms, as it catches a lot of innocent software in the crossfire.
3. Re:Avira is a PUP itself. by Lehk228 · 2015-06-29 14:15 · Score: 2
  
  avira scans files that get executed. if your AV scanner defaults to trudging byte by byte through a terabyte of movies and MP3s, that isn't a good thing. maybe for a monthly scheduled scan at 4AM monday morning.
  
  --
  Snowden and Manning are heroes.
4. Re:Avira is a PUP itself. by Anonymous Coward · 2015-06-29 14:32 · Score: 0
  
  Sorry to reply to my own post, but I forgot to add -- the practice of flagging keygens/cracks whether they actually contain any sort of trojan or virus indicates that the vendors are in bed with other vested interests, for money and/or political power, not safety -- they should be neutral arbiters of what is safe for users' PCs, not what is safe for companies' pockets... same for government-sponsored malware, which we now know 100% has been ignored by security vendors to the detriment of citizens.
5. Re:Avira is a PUP itself. by weszz · 2015-06-30 01:15 · Score: 1
  
  I tried the free Avira... couldn't take it... hourly badgering for buying it...
  You might need protection from this type of attack!
  You might need protection from Dogs
  You might need protection from this
  on and on... it never ended till i just got rid of it.
Bwahahaha! by MillionthMonkey · 2015-06-29 09:59 · Score: 0

Screw you, SourceForge!
Freemium.com promotes Avira by penguinoid · 2015-06-29 11:22 · Score: 2

"Avira flags all that crapware that most other antiviruses are paid to ignore," said a spokesman for Freemium.com.

--
Don't waste your vote! Vote for whoever you want, unless you live in a swing state it won't matter anyways
What is not excellent... by DigitAl56K · 2015-06-29 11:45 · Score: 1

... is on one hand the AV companies are flagging PUA, while on the other hand offering toolbars and search changes of their own at every opportunity. Effectively they are doing what they can to force their own search on users and then flagging anything that might change it, a very shady position if you ask me.
1. Re:What is not excellent... by bigfinger76 · 2015-06-29 13:25 · Score: 1
  
  Has Avira done this? If not, your point is moot.
2. Re:What is not excellent... by fustakrakich · 2015-06-29 16:04 · Score: 1
  
  Who cares? Avira isn't the only one to benefit.
  
  --
  “He’s not deformed, he’s just drunk!”
Re:OMG.. Aviria, is GREAT!!!!!! by Khyber · 2015-06-29 13:19 · Score: 0

Avira sucks.
Common sense with yearly upgrades.
Haven't been compromised since Win2K/BLASTER days.
Meanwhile, I can force-uninstall Avira, because its own protection mechanisms are ABSOLUTE ASS.
You're the shill. Take Avira's dick out of your mouth for a minute. Even NOD32 kicks the shit out of Avira.

--
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
Oh, WHAT a shame... by Anonymous Coward · 2015-06-29 17:50 · Score: 0

...because, OBVIOUSLY, Fremium.com's commercial rights to deliver whatever crap they want to to my browser take undeniable precedence over my rights to choose to be told that they're trying to deliver it, and to decline to receive it...
In what fantasy universe did they think they'd actually win that one?
1. Re:Oh, WHAT a shame... by BVis · 2015-06-30 00:38 · Score: 1
  
  Stupid judges, stupid juries (although I don't know if this was a jury trial), "expert" witnesses wholly owned by the plaintiff, deeper pockets than the defendant, sleazy lawyers... All can lead to a completely ass-backwards decision that has so little to do with the facts in evidence that the case might as well have been decided by flipping a coin.
  I don't know what it's like in Germany, but here in the USA trying to get a judge or a jury to understand what an antivirus program even IS is a crapshoot at best.
  
  --
  Never underestimate the power of stupid people in large groups.
2. Re:Oh, WHAT a shame... by Anonymous Coward · 2015-06-30 09:11 · Score: 0
  
  Germany doesn't currently have jury trials and because of the shining examples of the US and the UK the Germans on the whole think that having a judge decide is by far the lesser of two evils. Historically Germany did have jury trials at various points in time. Reasons for abolishment have included oppressive rulers who feared facing a jury, but also emergency law, impracticalities in combining the right to a jury with the right to a motivated sentence, and unification of the legal foundation of different territories.
Re:OMG.. Aviria, is GREAT!!!!!! by weszz · 2015-06-30 01:19 · Score: 1

I couldn't take the badgering to upgrade from free... If it worked well and I liked it I may have, but it was just a frustrating, annoying experience to constantly have it tell me why I should give them money.
If I did, then the next step would be to buy the next level up, because you might be unprotected against something else...
I've moved onto another one that doesn't badger me, so I am close to giving them money instead.