the absurd observers

Thursday, April 28, 2005

Spitzer targets spyware company


New York Attorney General Eliot Spitzer on Thursday sued a major Internet marketer, claiming the company installed ''spyware'' and ''adware'' that secretly install nuisance pop-up advertisements which can slow and crash personal computers.
It is about time someone put an end to the various deceptive and annoying programs that get stuck on computers. Anyone who has had the misfortune of downloading weatherbug or other such worthless programs should be thrilled. I wonder how long until someone targets the the advertisers who use these programs rather than the software manufacturers. Once that happens, the market will get taken away and these infuriating programs will be eliminated. If there is not already a legal theory that supports targeting such advertisers, hopefully Congress will pass legislation enabling such lawsuits. After the do not call registry case, there should not be too many First Amendment problems.


  • I recall a conversation with an attorney involved in the defense of Gator (one of the first offenders) who was singing the praises of eWallet to me (remembers your password / sends all personal information to Gator and dumps ads all over your software -- fair trade). I asked him whether he used eWallet and he stared at me with horrified incredulity. "You're kidding?" he asked.

    As for a legal theory for attacking it, there are a few. Spitzer is claiming commonlaw trespass, which seems iffy, but I suspect you could also use fraud (which I think Spitzer is also using). There has been a fair bit of academic commentary (I edited a student note on this subject) about whether "initial interest confusion" under TM law would be a viable angle of attack for context-sensitive popups. (Here, the cause of action would probably belong not to consumers, but rather to, say, Google, for ads that use Google strings to send context-sensitive popups.) Playboy used such claims against metatag techniques where hardcore porn sites were trying to get listed on search engines before Playboy, Inc., when someone searched for "playboy and nude." There might also be a claim for copyright infringement for popups that appear over a website without that websites permission.

    These options seem weaker than the consumer-styled ones. Although Google and a few other companies have a strong incentive to protect the viability of the Internet, they aren't going to be as aggressive as class action lawyers.

    I agree that advertisers should be targeted as well as developers, since most of the developers of spyware are incorporated in places like Belize.

    By Anonymous Anonymous, at 11:11 AM  

Post a Comment

<< Home