Appeals Court Overturns Bad Decision About Adware

from the good-decision-for-bad-companies dept

As you may have noticed in our coverage of adware/spyware/malware companies, like most people, we’re no fans of the companies. They tend to act in sleazy, underhanded ways, installing software without people realizing it, or without explaining to them what the software really does (pop up ads). However, all of that being said, legally, if someone wants adware on their computer, they should have the right to put it there. That is, the process by which adware applications pop up ads of competing companies for people who visit certain pages, should be entirely legal, if the person who owns that computer wants that “feature.” It may be a very small number of people, but it’s their computer and they should have the right to trigger ads based on what they’re surfing. Adware maker WhenU has been involved in most of the lawsuits over this issue — as some companies were upset that WhenU popped up competing ads when people visited their sites. In the various lawsuits, the ability to pop up competitor ads was found legal the first and the second time. However, the third time the case came up, a judge said they were illegal. However, it looks like an Appeals Court has now overturned that ruling and said that it’s perfectly legal to do those popups, given that people want them. This is the right decision. We have no problem with lawsuits against these companies for doing sneaky installs, or other efforts to get that practice to stop. But, at the end of the day, if you want to change your browsing experience on your computer, that should be your right — even if it involves additional ads.

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Comments on “Appeals Court Overturns Bad Decision About Adware”

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adware is not a right says:

just as contracting cancer is not a right either.

same old broken record. you are playing into the adware markets hands by defending it as user rights. Why? because the majority if not ALL users will not know that they are being abused by adware.

For example, according to your continuing defense of this argument, I could download adware that redirects every load of techdirt to slashdot. Yes, I did click their agree to terms of service button and said I read their 50 page terms of service. And yes it is my right to have my pc redirected where I want. And I wont even know that techdirt isnt slashdot because I can no longer get to techdirt – which is my right as the owner of my pc.

The reality is that the user is giving up control of his browser to adware companies. The user is not preserving control, as you argue. The mythical case you argue does not exist. The reality, that adware be allowed to display whatever it wants when you browse, does exist.

Mike (profile) says:

Re: just as contracting cancer is not a right eith

Except… that, despite what you believe, there are some people who like the idea of seeing what else is out there when they surf. They may be a tiny minority, but it’s their right. If someone wants Techdirt to always appears as Slashdot, that’s their issue.

Your argument is misleading because you claim that people won’t know that it’s the spyware they agreed to that causes the change. That’s a DIFFERENT situation. That’s a situation where they’re being tricked.

You do see the difference, don’t you? If they’re being tricked, that’s a problem. However, the lawsuit ISN’T about people being tricket, but whether or not it’s illegal to have these popups at all. It’s not. It’s perfectly legal, and the court agrees.

You can hate the Adware companies all you want (and I do), but you’re doing more harm than good fighting them on the issues that they’re right on, rather than focusing on the many, many areas where they’re definitely doing wrongs.

oh brother says:

Re: Re: just as contracting cancer is not a right eith

You are making an assumption that there are people that want to be led by adware. You dont know that these people exist. Yet you defend their right to this baffling possibility at the expense of common sense. And at the expense of the majority who do not want to give up their rights to adware.

It is not misleading because no one reads terms of service and you’ve written about it here.

I’m not doing harm by fighting the adware companies from taking control of my pc. You are doing harm by saying it is my right to cede control of my pc over to an adware company.

Mike (profile) says:

Re: Re: Re: just as contracting cancer is not a right eith

Hmm. Nope. I do know people who want adware on their PCs. They don’t mind it. I know it sounds crazy, but I have a relative who has told me specifically he wants it on there, because he likes the other features included with the adware, and he doesn’t mind the ads. Yeah, it’s not for you or I, but why shouldn’t he be able to do that.

And, yes, you are doing harm by saying that people can’t control their own machines and decide what to put on them. That opens up a very slippery slope. Despite what you claim, I never said you should “cede” your pc to an adware company. Quite the opposite. I said that if YOU are in control, YOU should have the right to use the adware. Where did I ever say you should allow the adware to do things you don’t want it to? That’s the whole damn point. If the adware is only doing things the user wants, then why is it illegal?

The PROBLEM with adware is when it does stuff people don’t want on their own computers. That’s not the issue being fought over here, and by continuing to claim it is an issue, you take focus off the REAL issue.

ArtMuscle says:

Re: Re: Re: just as contracting cancer is not a right eith

I agree with you. I repair PCs, and most of my time is now spent removing spyware and adware programs from unsuspecting PC owner’s computers. I’m going to say that roughly 70% of my customers don’t even know what adware and spyware is and have no idea what is happening to their PC or how the stuff got on their PCs to start with. They got it because there are too many sites out there that just go ahead and install their programs and cookies on unsuspecting surfer’s PCs without any kind of notification. That just isn’t right. There are a lot of “free” things out there for people to click on, and they unknowingly end up with adware and spyware on their PCs because of it. Even when these “free” offers say they are going to put something on their PCs, most of the users don’t have enough computer savy to even know what it is they are doing, and what the consequences are going to be. Then they have no idea what is happening to their PC when they are getting dozens of Pop-ups when they aren’t even online. I’ve seen PCs so full of adware and spyware, the owners couldn’t even use them, even without being online. So many pop-ups were being activated, their PCs would just lock up. I haven’t met one single person, ever, that wants pop-up ads appearing all over the place whether on or off the internet. My guess is that Mike must be affiliated with some company or corporation that is involved with developing or selling adware programs, because he’s the only person I ever heard that wants them.

RDF says:


There may be a few computer users that want pop-up ads in the Land of Oz, but in the real world, these ads are not welcome. Defending these sleazy companies and their tactics is ridiculous. Be careful associating yourself with these companies, Mike. That sleazy stench has gotten on you and it will be very hard to get out.

Frequent observer says:

Re: WTF?

Although I understand the flame leveled at the adware companies, I have a hard time understanding why no one gets Mikes point. Am I the only one who remembers the DIVX bundle which was adware supported? I believe it came with Gator along with a few other things. The terms were spelled out right on the website: Get a free copy supported by adware or Pay X dollars for a version free of these annoyances. The adware supported version tended not to work when the user uninstalled the annoying add-ons, but you’d get a warning that this would happen when you attempted to do so. Limited example, I know, but it does support Mikes “unfounded” point.

Reader says:

Re: Re: WTF?

Agree with Mike here but I offer a different perspective. The way I look at things like this is that at the end of the day, it empowers the individual but that puts the responsibility of keeping a clean computer squarely on my shoulders (and I accept that responsibility).

Just like how its my responsibility to feed my kids, or how its my responsibility not to shoot anyone even though I can own a gun…

Ivan Sick says:

Re: Re: Re: WTF?

Adware should NOT be illegal. I hate the stuff. I hate when my users get it. I hate everything about it. But it should not be illegal. Because when we legislate against things like this, it becomes a case of the government protecting us from ourselves. The government becomes your overprotective parent who won’t let you cross the street. Laws like this condone, promote, and approve stupidity and helplessness. Not to mention the fact that (at least in this case, which involves the internet) that these laws have no chance of ever being even remotely effective.

Mike (profile) says:

Re: Re: Re:2 WTF?

The point isn’t even whether “adware” should be legal. In fact, I might even support a law that makes the practice of surreptitious installs illegal. The point really even has little to do with adware. The problem is that some people can’t see past the adware label to understand what the real issue is.

In this case, the question is simple (and has nothing to do with “adware”, per se). The question is: is it legal to show additional info next to a website that isn’t served by that website itself. If this ruling had been allowed to stand, it would have outlawed much of what people do with Greasemonkey as well — because you would have been “violating” their trademark by adding information to a page.

*That* is what I’m supporting. Not adware. It’s a bit scary that people seem unable to separate the two issues.

yesitshould says:

Re: Re: Re:3 be illegal

It is illegal in this country to sell yourself into slavery. Even if you want to be someones slave you cannot do it.

Even if you want to be fed misinformation everytime you browse, it should be illegal. It is illegal in the print world to do this. It should be illegal in the internet world. Just because you may want to be misled by adware does not make it legal to mislead people about a websites content.

It is not a users right to give up. It is an advertizers dream come true to replace any content with their own content and you are defending that practice.

What is scary is that you pretend that people disagreeing with your pro-adware stance dont understand the issue. It is you that is mischaracterizing the issue.

It is illegal in the physical world, magazines, books, brick and mortar stores. You CANNOT change other peoples content without permission from the owner NO MATTER WHAT THE USER SAYS. It is illegal. It is the same situation on the web.

Mike (profile) says:

Re: Re: Re:4 be illegal

Where in the law does it say you can’t change content without the owner’s permission? I’m curious. You’re not publishing that content. You’re changing it for your own personal use. That’s perfectly legal.

I can certainly take a magazine and cut it up or past new stuff in there. It’s *my* magazine. If I were to go resell it, that’s a different story. But if it’s just for my use… that’s 100% legal.

lame argument says:

Re: Re: Re:5 be illegal

This is the same lame argument you used last time. And you are purposely obscuring the issue again. We are not talking about an individual changing the content of a website, we are talking about a tool created by someone OTHER than the individual that is being used to do it.

Have you seen a tool that replaces the content of books or dvds that is not illegal? Didnt think so.

You can certainly white out your screen where ever you want. It is your screen. But you cant use a tool to do it for you automatically. The website is NOT your website.

When you defend the adware companies you are doing three things
1. defending some obscure right by ignorant folks to have adware companies change content for them.
2. defend adware companies right to change sites they dont own for their own profit motives.
3. defend the right for someone other than the owner of websites to change their property.

Your sole argument hinges on number 1, while ignoring 2 and 3. This country has a long history of property rights overriding user rights. Yet you ignore (and purposely obscure) the rights of the owner for the rights of the user.

Mike (profile) says:

Re: Re: Re:6 be illegal

Hmm. Nope. You still don’t get it. What you’re saying is that the whiteout is illegal. The tool is still being used by the individual.

As for your list… who says the people are ignorant? What right do you have to say that no one wants this. Amusingly, someone actually emailed me today complaining about an earlier article trashing adware companies by saying that she chose to have adware installed because it’s useful to her.

As for point two… they’re not changing the site at all. They’re simply delivering an ad based on where you surf. How is that changing the content? It’s like when you go to the supermarket and they hand you a coupon for a product based on one you just bought. Are you saying that’s illegal?

As for point 3… again, you’re completely wrong. No one is changing the content on the website. They’re only doing something to the local copy — which is their right. If the product was changing something on the server side that impacted everyone, you’d have a point. Instead, you argue about things that aren’t the issue at all.

Anyway. We’re talking in circles. I’m sorry that you don’t seem to understand the real issue here — as it’s only to the detriment of your own rights as a user.

too bad says:

Re: Re: Re:7 be illegal

there you go again obscuring the issue and saying i dont understand it. The white out doesnt change your screen automatically does it? Do the scissors automatically cut out the ads in your magazine and paste in new ads? Tell me if they do, but I bet they dont.

As I stated earlier, just because someone wants something, does not make it legal. Some people may agree to slavery for financial incentive. That does not make it legal.

Point 2. Yes they are changing the content of the website. If there is an ad on the website that wasnt there by the owners own coding, it is changed. You know that. Pretending that isnt changing the content doesnt bolster your argument. It is not like the coupon in the supermarket. That would be more like gettin a coupon emailed after purchasing. What would be similar in a grocery store is one company changing the label on another companies product. That is not legal. You know that too.

You keep saying it is the users right. What about the owners right? That counts for nothing in your world?

I’m sorry you have to resort to pretending not to understand that the issue has more than one point. I’m sorry that you would rather support gator than look at the issue objectively.

I care more about my rights as a website owner than I do about your ignorant friends choice to be misled by adware.

I care more about my USER rights to see the REAL content on the sites i surf rather than some adware modified version. In your world, the real sites are irrelevant and whatever the adware vendors want to serve up is all that matters.

Mike (profile) says:

Re: Re: Re:8 be illegal

Hmm. Except, again, you misunderstand the issue. The adware isn’t replacing any ads. It’s just popping up separate ads. So, all of your arguments don’t actually apply.

The creators of the content have the right to put it out. Once it’s on my computer I can do whatever I want with it, as long as it’s not to resell it or redistribute it in an un-approved way. However, within the confines of my own use it’s perfectly legal. That’s what the law says, that what the courts say and that’s what common sense says.

You can say that I defend Claria/Gator all you want, but if you look at anything I’ve written about them in the past, you’d know that’s not true. I don’t defend them for any of their slimey practices — which I agree is wrong. However, the fact that they provide ads is not a slimey practice. By pretending it’s just as, or more slimey than their other practices actually makes it easier for them to continue doing what they do, because you get people focused on that issue, rather than the real problem.

Anyway, do you think that Greasemonkey is illegal? Based on everything you’ve said, it must be. Adblocker too?

just perpetuate misinformation says:

Re: Re: Re:9 be illegal

Hmmm. there you go again saying I dont understand the issue. That really bolsters your argument.

Why dont you address the point that you are elevating users rights over owners rights. Yes you are changing the owners content without permission and no that is not legal to do. As has been said and resaid everytime you defend gator.

You are defending users rights to see ads. Do we really need to defend goliath to feed us ads? Are we at all worried that our right to advertizing is somehow in jeopardy? Come on Mike. Open your eyes. You are being a tool of claria. Why not defend the users rights to see the ACTUAL content of websites instead of enhanced helpful ad laden websites? That is what is in jeopardy.

Mike (profile) says:

Re: Re: Re:10 be illegal

Right. That’s why the courts have disagreed with you every time.

It is about users’ rights. The publishers’ rights are not violated in any way. They are not prohibited from doing anything they’ve always done.

It’s not about defending Claria — a company who clearly I have problems with almost every aspect of their business model (do you actually read what I write?) — but about defending the rights of users to be able to use their computer as they see fit.

If they were publishing stuff outbound, that’s different. But this is for use on their computer only, and as the owner of that computer, they have the right to do what they want. It’s common sense and it’s what the law says. You keep saying it’s illegal — but clearly the courts don’t agree with you and common sense doesn’t agree with you.

Law Dude says:

Re: Re: Re:11 be illegal

Mike is totally right on this.

Google filed an amicus brief supporting that the initial ruling be overturned because if it stood, it would mean that a huge part of their business would be illegal. Right now on Adwords, advertisers bid on the names of their competitors products and show up in search listings for that product. That would be illegal.

Who else wanted this overturned? All your credit card companies, who look at your purchases and then send you advertisements with your statement based on your consumption patterns.

Who else? Those companies that print those coupons on the back of your supermarket receipt, where the coupons are based on what you bought.

These businesses have been around forever and operating legally.

Part of the confusion with this case in particular is that the plaintiff argued that their content was being changed by the offer. That wasn’t the case, the webpage wasn’t changed. The analogy was made that any window could pop open when you were reading that webpage. For example, you could’ve gotten an instant message from your friend and it would’ve popped right open while you were reading that website. The only difference between an instant message window and adware pop up is whats inside the window. The key to this was that the adware window is identifiable as an adware window so that there wasn’t any confusion that it was related to the website.

Abres los ohos says:

Re: Re: Re:12 be illegal

Clearly neither of you can think for yourselves. I suppose you go around defending microsofts right to innovate as well. We should make sure that microsoft always has that right. Instead of focusing on the real issue behind the smoke screen. Like monopoly tactics in ms case and changing website content in this case.

You cant seem to understand, and I wouldnt expect courts that dont know what the internet is, that when a tool changes what a visitor sees at a website, that is content change. It doesnt matter that the change is done on the users computer. It is still changing the content. I go to techdirt and get ads for porn, then techdirt is changed. Do I know that the ads came from a tool and not techdirt? And what about when they change the method as google wants to do and others too? When it is not popups, but embedded ads or in googles case, changed content, hard links to your competitors. How can you possibly not view that as changing the content of a website?

Yes big advertising companies have been around forever. And yes big advertising companies are totally behind this. Duh! that is because they are the ones that use gator. They are defending themselves. It doesnt make it right.

You are setting a precedent that is very dangerous for the little website and wonderful for big advertisers. what is to prevent a browser from only displaying what it wants, or always showing google ads, regardless of whether the site agrees or not? The user agrees to these terms when he downloads the browser. The user should have the right for google or ms to only show him what they decide?

Whenever you oversimplify an argument, you can bet that the oversimplification is fed by deep pockets. In this case by the advertisers. And you swallowed it whole. It is clear that you wont open your eyes until you see for yourselves the damage you cause by defending this.

Enjoy your ads. They will be everywhere thanks to tools like you.

Greg Andrew says:

Re: Re: Re:13 be illegal

There is a device that changes the content on dvds (by editing dvds for offensive content) for viewers, and it’s 100% legal. I would never use such a device and I question whetther it’s truly useful for anyone, but I would defend its manufacturer’s right to make it and individuals’ right to buy it.

Mike (profile) says:

Re: Re: Re:13 be illegal

Except… nope. You’re wrong again. You seem to assume that people are really as stupid as you hope they are. Instead, I know that people aren’t really that stupid, and if they’re getting bad ads or stuff they don’t want from a browser, they’ll figure out how to get another browser.

What you’re doing is taking away their right to use tools that they find useful. What if I want a tool that shows me other shops selling the same item I’m looking at in an online store? By your logic: illegal.

And, it’s a VERY different thing if the content is being changed on the user’s computer or the server. It’s unfortunate that you can’t see the difference, but that’s no reason to assume that everyone else is as clueless as you make yourself out to be.

Law Dude says:

Re: Re: Re:13 be illegal

Hey Abres los ohos,
One of the KEY pieces for getting the prior ruling overturned is that they were able to prove that the ads are showing in a clearly identified adware window. They were able to prove that they don’t trick the user and its clear that the ad isn’t related to the website.

Also, you have to remember that this was a ruling made in the appeals court. That means the original ruling was against adware but it was overturned. It goes to show you that there are judges out there that don’t understand the technology too well but there are lots of judges that do understand the case well so you got to check the ignorance at the door.

Sounds like you’re pretty upset about this and I feel for you buddy but you should really get a better understanding of what its all about.

Anonymous Coward says:

No Subject Given

Wow. Mike is right on this issue; in fact, it’s nearly a no-brainer. Some of you think it should be illegal to deliberately run a program that manipulates data on your own pc to display info the way you prefer? That’s crazy.

What about a price comparison services, that displays other sites’ offers while shopping? What about a filter that replaces text obscenities with asterisks or euphimisms? Someone might be perfectly willing to give up surfing data for a convenient enough service.

The principle at stake is who owns the pc, and whether the individual can freely decide what to run on their own machine. Obviously, deceptive adware is wrong. But not all adware has to be deceptive.

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