L.L. Bean Sues Nordstrom Over Adware Pop-Ups

from the interesting-legal-questions dept

There have been many, many lawsuits filed against the various adware/spyware companies that will place ads over certain web pages (for example, putting a FedEx ad over the page if someone visits the UPS website). The real problem with these companies is the fact that their products are often installed without the end users realizing it, and they make it very difficult to remove. However, that legal issue (sneaking stuff onto your computer) gets confused with the other legal question of whether or not it's illegal for these products to pop-up these ads for competitors. The lawsuits have returned mixed results. Sometimes the adware companies win and sometimes they lose. On the whole, they should win these cases. If (and it's a huge if) someone installs this software on purpose - then why shouldn't they be allowed to let the software pop up ads from competitors? Maybe I want to know about competitors to the websites I visit? Why shouldn't I be allowed to set that up on my own computer? The real problem with these products is the fact that they are installed without any real notification (often by having it hidden in the fine print while installing another product). Still, the lawsuits continue. This time, however, L.L. Bean is taking a different path and one that makes a little more sense (though, I still think they should lose). Instead of suing companies like WhenU and Gator directly, they're suing Nordstrom, J.C. Penney, Atkins and Gevalia for buying ads on one of these systems to pop up whenever someone visits the L.L. Bean website. To me, this is the same question of whether or not Google can sell trademarked advertising terms. The companies doing the advertising aren't violating trademarks. A trademark doesn't give a company all rights to a word or phrase - it just lets them protect it from others pretending to be them. However, by suing the other companies, they're following the same plan some are suggesting companies take with Google: don't sue Google, but sue the advertising companies. Still, I don't see how this is anything other than someone trying to position their ads well. For years, companies have bought billboards outside of their competitors. IBM and Informix have run billboards right outside of Oracle's offices for years. Fox News apparently has a billboard outside of CNN's offices. It may be a little obnoxious (and who knows how well it actually works), but it's certainly not illegal. If L.L. Bean really wanted to help, they should just offer adware/spyware removal tools on their site and fight to against the sneaky nature by which these programs are installed without users knowing it.

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  • identicon
    Oliver Wendell Jones, 18 May 2004 @ 11:02am

    A Thought Experiment...

    Close your eyes and imagine yourself in a department store of your choosing.

    Picture the image of you finding the perfect shirt/blouse/sweater/etc. that you have been looking for.

    Now imagine as you you go to pick the item up, a person, from out of nowhere, steps up to you and says "HEY, HAVE YOU CHECKED THE PRICES AT JC PENNEYS, WAL-MART, K-MART, TARGET OR ANY ONE OF THE MANY OTHER FINE DEPARTMENT STORES WHO PAY ME TO INTERCEDE ON THEIR BEHALF?"

    Now imagine the look on that person's face as department store security guards drag him/her off into the distance, never to be seen again.

    If it's not legal to stand inside your competition's stores and direct customers to your location in the real world, why should it be legal to do the same in cyberspace?

    If I wanted to compare prices I'd use Froogle.

    If I wanted to check the competition's websites I would do so.

    reply to this | link to this | view in chronology ]

    • icon
      Mike (profile), 18 May 2004 @ 11:06am

      Re: A Thought Experiment...

      But why should it be illegal for someone to set that up on *their own* computer if they want to?

      Your "thought" experiment is wrong. To be honest, if I was comparison shopping, I'd love to have someone standing next to be at the department store telling me how much the identical shirt cost at other stores. That would be great.

      Your real complaint is them coming "from out of nowhere" - which is the point I made. The problem is the sneaky installation (the "from out of nowhere") not the actual process of alerting you to competitive pricing.

      reply to this | link to this | view in chronology ]

      • identicon
        Oliver Wendell Jones, 19 May 2004 @ 7:17am

        Re: A Thought Experiment...

        The problem, Mike, is how many users with this intrusive adware crap installed actually want it installed?

        My guess is far fewer people want these kinds of ads than don't want the ads.

        If people want to install price comparison software then they should be allowed to and noone is trying to stop them.

        The retailers who risk losing sales are concerned and have every right to be so.

        Since the software isn't actually trespassing like the guy in my thought experiment, they can't go directly after him, but they can go after the people who are paying him to "hang out in the store and wait".

        reply to this | link to this | view in chronology ]

        • icon
          Mike (profile), 19 May 2004 @ 9:04am

          Re: A Thought Experiment...

          If people want to install price comparison software then they should be allowed to and noone is trying to stop them.

          But, you're wrong. This lawsuit IS trying to stop people from doing that.

          I agree that the problem is how this product is installed - but they're not suing the spyware makers for that. They're suing the advertisers for their ads EVEN IF PEOPLE WANT THEM.

          It's a very important distinction.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 May 2004 @ 9:24am

            Re: A Thought Experiment...


            Mike, you are wrong.

            The advertisers should be sued for lack of due diligence and choosing to use shitty ad delivery mechanisms like Claris/Gator Mike.

            Using that 3rd party excuse is crap. #rd party ad delivery "services" like Gator would NOT exist if ethical companies didn't engage their services.

            reply to this | link to this | view in chronology ]

    • identicon
      bbay, 18 May 2004 @ 9:31pm

      Re: A Thought Experiment...

      Bad thought experiment, when I'm browsing L.L.Beans' site I'm most certainly not in their store. My computer is in my house, when I'm interacting on the internet it's much more analogous to requesting a catalog than it is to browsing the racks in the store.

      And here's my experiment: What if I'm carrying a PDA that runs an app that automatically scans the RFIDs in the area and shows me the competitors' prices? Should that be illegal? What if the app runs on my wearable computer? Or my neural implants?

      reply to this | link to this | view in chronology ]

  • identicon
    Chris O'Donnell, 18 May 2004 @ 12:11pm

    No Subject Given

    What if I installed some gator like software that upon my trying to buy books at Amazon, popped up and suggested that I check my local library first? What if I installed that software specifically to help myself control inpulse purchases on Amazon? Are you implying Amazon has a right to tell me I can't do that?

    BTW, the software exists - although it isn't a pop-up. It's a javascript that I have on my browser toolbar that I can use to check my local library with one click when I'm viewing a book page at any major online bookstore. And I have probably not purchased a book 6 times this year because of it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 May 2004 @ 12:16pm

      Re: No Subject Given

      omg, you get the polly prissy pants award for not buying books. enviromentalists accross the land are swooning with undulating adoration for your use of javascript. software to control your impulse purchases? You need a 12step program most likely. Let the healing begin.

      reply to this | link to this | view in chronology ]

      • identicon
        bbay, 18 May 2004 @ 9:43pm

        Re: No Subject Given

        Yeesh. You get the Unwarranted Assumption Award for not considering that books are expensive, some people read a lot, and much of the time only read a particular book once.

        Next you'll tell us that video rental stores are part of a liberal plot to undermind capitalism.

        reply to this | link to this | view in chronology ]

  • identicon
    hanzie, 19 May 2004 @ 3:07am

    Just a thought...

    How about looking at this from a copyright perspective? (Yes, I know, not likely to get me a lot of support in here, but bear with me).

    You designed your site to look a specific way, including the location of certain information, the logos you use and the general impression it leaves behind. But if an outside product consistently flashes up information over your site, then isn't that in a way altering the lay-out as you designed it?

    Compare it to a book store that pasted tiny stickers over certain words in certain books (say, over "naughty" words in controversial books). Isn't he violating copyright, because he is a third party who is intentionally altering another person's work and thus mutilating the impression it leaves on others?

    I'm not sure wether this would stand up in court, but it's certainly an interesting question.

    reply to this | link to this | view in chronology ]


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