How These Suits Could

By Ryan Naraine  |  Posted 2005-09-27 Print this article Print

Affect the Spyware Industry"> To Howes and Edelman, the allegations in the complaints are rather unremarkable. "Theyre basically stating things that have been known to researchers in the anti-spyware community for some time now. Nothing in there made me stand up and say, hmm, I havent seen that before," Howes said. He said the entire industry is keen to see how the law will regard and treat behavior that spyware critics have been deploring for a long time.
"Im very interested to see how the law will regard some of these behaviors, which I think are outrageous."
Like Edelman, Howes said he is not surprised to see that 180Solutions and Direct Revenue among the first targets. "These two were certainly good targets, but I can tell you there are others out there that are ripe for action. I expect to see a lot more of these lawsuits," Howes said. Howes also credited the work of New York attorney general Elliot Spitzer, who filed a lawsuit against Intermix Media Inc. alleging that the company surreptitiously installed adware and spyware on millions of personal computers. The case was later settled, but the message was sent, and there was a dramatic shift in the attitude of adware companies towards critics. "The initial case against Intermix substantially changed tone of discussion. Earlier this year, they [the adware vendors] were sending off legal threats and cease-and-desist letters to anyone who criticized them publicly. They were insolent and arrogant. "Since the Intermix case, weve seen adware companies scrambling to make changes to their software installation methods. All the efforts to clean up are a direct response to Spitzers action," Howes said. He believes Spitzers office and the attorneys at the FTC (Federal Trade Commission) have been quietly working on cases against other spyware purveyors. "We could very well see new cases. In fact, we know they are aggressively investigating behind the scenes." Eric Goldman, assistant professor at Marquette University Law School, said he sees an intriguing precedent being set by the putative class action claims. In a Weblog entry tracking the topic, Goldman said the preliminary order in the Direct Revenue case was "a big win for the plaintiffs." "Moreover, the judge signaled in a few places that he was sympathetic to the plaintiffs concerns. While theres plenty of litigation standing between the plaintiffs and a payday, this ruling dramatically increases the odds of the plaintiffs success," Goldman added. From a precedent standpoint, he said, he believes this is the first case to say that individual users may have a valid cause of action for common law trespass to chattels claim based on software using their personal computers. "I trust we all can appreciate the floodgates of litigation that may open if undisclosed downloading of software (not just adware) onto a users computer can support a trespass to chattels claim ... Well have to see if the court puts any better parameters on its thinking at the summary judgment stage," Goldman said. Check out eWEEK.coms for the latest security news, reviews and analysis. And for insights on security coverage around the Web, take a look at Security Center Editor Larry Seltzers Weblog.


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