L.L. Bean Suing Competitors For Spyware-Linked Ads 268
httpamphibio.us writes "According to this article on CNN, L.L. Bean is suing 'Nordstrom and three other companies it alleges used pop-up ads that appeared when some customers visited the clothier and outdoor gear retailer's Web site.' The article mentions Claria Corp, a maker of spyware . This is an interesting route to go about getting rid of spyware, attacking its source of income instead of the manufacturer."
taking the high road (Score:5, Insightful)
Re:taking the high road (Score:4, Insightful)
Re:taking the high road (Score:5, Insightful)
Not sure which mod smoked crack and decided above comment was flamebait. Theres still a corpus of truth to it in some way.
Most companies , given the chance, would love it if spam/popups/whatever worked and didnt irritate the living shit out folks. *however* that does NOT mean the same-said company knows full well it pisses off customers and therefore won't go near it with a ten foot pole.
Personally, popup ads will tend to mean I'll never buy something from the company, both on principle (stop shitting over my desktop popup advertisers!) and because I worry about the potential ethics of said company (if they are prepared to kick my door in and force me to watch ads, will they run off with my wallet also?). However from time to time, I'll click out of curiosity on a tasteful non intrusive banner, specifically the google style text ones that arent in the face and are informative.
Alot of dot coms are wising up to this and are using 'guerilla advertising' methods that wont piss me off.
I'd like one of these days to see something like a consumers manifesto; sorta like
I The customer do declare I will NOT buy your stuff when you;-
1) Spam me
2) Open up windows I do not want
3) Show my children pornography
4) Take over my screen
5) Crap on my psyche
6) Treat me like an idiot.
Follow these rules and I may, just may, buy your widget! Break these rules and forever lose my custom.
Signed;- Joe consumer.
Whatya think? Maybe its time customers made OUR rules for 'guerilla marketing'?
Re:taking the high road (Score:3, Insightful)
I always ask what it is they are trying to sell me, and then tell them I will never ever buy that product again. Basically it all comes down to intrusive/agressive advertising, and products that are advertised thus should be boycotted.
Re:taking the high road (Score:5, Interesting)
I consider myself to be quite an 'anti-corporate' person, in the sense that I think we need to drastically reign in the privilege and influence of corporations in modern society. And the legal anthropomorphization of companies has gone too far, even - and this is the point of my post - to the point where even fellow anti-corporates do it.
'Love'? 'Know'? Come on people this is fuzzy thinking at best. I know it's sometimes just in the interest of simplification, but it leads to over-simplification.
Remember SCO and the antics of its leadership: doesn't make any sense if you think about some mythical 'wants' and 'hates' of SCO itself, since it sounds like some schizophrenic suicidal psychopath. Yet, as soon as you think of certain members of the board, who might want to cash out and let the company sink then it makes sense again.
The same goes with 'good' companies to some extent (i.e. the actions of L.L. Bean now), however that's always when some 'clear-thinking' individual shows up and points out that the company is 'only interested in profit', as if it's patently impossible that anyone in the management might have morals or standards. Or worse there's the implication that -- since the company is just this lumbering raving profit-hungry beast -- it will only ever do something good if it's prodded with the profit stick.
People: companies are abstract *things*... led by people. It's very rarely one single person, and if it is, they are very rarely without some kind of oversight. The only thing the company itself represents behaviorwise is sometimes a certain 'culture' that is common there. But never forget: that culture is a product of the people and their history in the company not some magical aura the permeates the company, which is why if you let enough people go, or change the leadership drastically and/or at many levels the company can transform itself (see IBM -> IBM, or SCO -> SCO, or... anyone remember the original EA? when the 'A' meant something?).
Sorry for the rant. Frankly the parent it far from being the worst at this, but I just wanted to get that off my chest
-chris
Re:taking the high road (Score:4, Insightful)
I couldn't agree more with this. I haven't seen a popup ad or animated Flash ad in quite a while (switched to Mozilla since 0.95, Flash/Java disabled) but one company I refuse to do business with is X10. Sure their little cameras look cool, but before I switched from IE, their ads were (at the time) so freakin' annoying and pervasive that I just can't see giving them any sort of money.
Google has it right. Their ads are text based, and they are picky about what kind of ads they will even show. I've been on both sides, and as an advertiser I once received a notice that the word "FREE" with all caps (as in, "FREE download") was potentially problematic. If they're that picky about that, I'm sure the ads I see go through the same type of checking before they're shown to me. In fact I pay more attention to Google ads (always clearly marked as such) far more than any other type of ad, based solely on their reputation with me personally.
Targetting people who you know don't want your ads (getting around popup blockers or spam filters, or ignoring the Do-Not-Call lists, etc) is simply not a good marketing move IMO. You can't sell to people who have (in some way) stated that they have no interest in your ads...
However, I have no problem with "normal" ads. Ads that aren't annoying (many TV/radio commercials are as bad as popup windows/Flash ads), that simply state what you're offering and possibly why I might want/need your service, are the types of ads I would respond to. Google's ads are almost always in this category, as are some (but not many) radio/TV ads, and even some normal static/animated banner ads on the 'Net. Bogus error messages or bogus contests ("You are visitor xxx..." or "Punch the Monkey") are even worse IMO...
The point is, if you have to try that hard to get me to notice your product, your product likely isn't good enough on its own to warrant a look. Other times (X10) the product itself may be worth the monetary cost, but I refuse to do business with a company who thinks this type of behavior is acceptable. Supporting such a company is (directly or indirectly) supporting these annoying advertising techniques, thus making them appear effective, and contributing to the problem.
Hell, I forgot the topic at hand here, but once I get started on advertising ('Net and elsewhere) I tend to rant...
Re:taking the high road (Score:5, Insightful)
This will make a very short list.
1 Don't tresspass on me.
2 Be there when I look for you.
When I'm at home enjoying my evening, I'm not shopping. Don't bug me.
When I'm searching for a product, I'm shopping. Be there where I'm looking. Don't tresspass. Don't advertise viagra under wireless routers. Invalid results are despised by all. I don't check my mailbox and inbox or wait for the phone to ring when I'm shopping. This is posted at my phone for everyone to see...
Prevent Fraud. Place orders only with people you call.
The same thing applies to any un-solicited advertisement.
Find a spot in the Yellow Pages, Froogle, or Yahoo Shopping. I'll find you if you are reputable and have a quality product at a reasonable price.
You may have a great rate for a re-finance, but I locked in my rate at the bottom of the dip. You may have a great on-line casino. I've taken a statistics class and know the long term range of the bell curve (narrow and centered below break-even). The long term chance of ever being ahead is very slim. Don't bug me. If and when I want a product you sell, (inexpensive laser-engraving equipment, Low cost printer consumables, Laptop Batteries, etc.) be in the proper search. I never search my inbox for the best deal.
taking the high road(?); Careful what you wish for (Score:5, Insightful)
I'm surprised that people don't see the First Amendment concerns. Be careful what you wish for. What if L.L. Bean where "taking the high road" by preventing their customers from being "accosted" with information such as L.L. Bean's use of sweatshop labor, discrimination against (fill in the blank), or sale of clothing that was dyed with alleged carcinogens? It is easy to applaud a method of speech when you also happen to dislike the (usual) message. Unfortunately, you may be creating a precedent so that method cannot be used to distribute any content.
Re:taking the high road(?); Careful what you wish (Score:5, Insightful)
Re:taking the high road(?); Careful what you wish (Score:4, Informative)
Re:taking the high road(?); Careful what you wish (Score:5, Interesting)
-- Lincoln to (Col.) William F. Elkins, Nov. 21, 1864.
Re:taking the high road(?); Careful what you wish (Score:5, Informative)
In the specific case of the First Amendment, read about the Kasky vs. Nike case, where a Kasky used a California law to sue Nike for allegedly false statements about sweatshops. Nike tried to have the case dismissed in a CA court as violating its First Amendment rights, i.e. they claimed the First Amendment give it the right to lie, while at the same time not admitting they lied. The CA court disagreed, and ruled the statements in question (a letter from a Nike executive to press) were "commercial speech" and not subject to the same level of protection as First Amendment protected speech. Nike appealed to the US Supreme Court, which at first accepted to hear the case, then later reversed itself and punted it back to the CA Supreme Court to first decide on whether Nike did in fact lie or not. Thus, the question of whether corporations have full First Amendment rights has not yet been definitely settled.
Whether it should or not is a value judgment. Opinions differ. I personally don't believe it should apply to non-humans, but I can see how groups like the ACLU or the EFF would be muzzled if they did not have rights (oh wait, this is happening already).
Re:taking the high road(?); Careful what you wish (Score:5, Funny)
I believe the brits actuall can do this with 'wind up orders'.
Re:taking the high road(?); Careful what you wish (Score:3, Funny)
Re:taking the high road(?); Careful what you wish (Score:3, Funny)
Santa Claus Operations
Re:taking the high road(?); Careful what you wish (Score:3, Interesting)
I believe the brits actuall can do this with 'wind up orders'.
Actually, I think it would be funnier if they just had to throw the company in jail. The whole company every employeee not just the board of directors. It would go ri
Re:taking the high road(?); Careful what you wish (Score:3, Interesting)
Like a human, a corporation can express an opinion (advertising, positions on issues); it can secure credit, often far more than the average human; it can commit crimes and be punished for them and it can declare bankruptcy. There are differences however.
Basically, the answer to your question is both 'yes,' and 'no':yes, a corporatio
Re:taking the high road(?); Careful what you wish (Score:5, Informative)
From 5 more min of google searching it looks like it only applies to the 14th amendment.
Santa Clara County v. Southern Pacific Railroad Company:
"The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteen Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws."
Re:taking the high road(?); Careful what you wish (Score:5, Insightful)
So what? Try applying your argument to the guy in the street with a loudspeaker at 2 a.m., to telemarketers, to someone spraypainting on your walls, to somebody inserting propaganda into school textbooks... The first amendment doesn't give people the right to do whatever they want.
Re:taking the high road(?); Careful what you wish (Score:3, Informative)
That said, this is Gator/Claria malware, almost no one installs it willingly and knowingly, and certainly no one agreed to get other ads when vie
Re:taking the high road(?); Careful what you wish (Score:5, Insightful)
That's going a little over the top. The lawsuit is about protecting their trademark. They are claiming that the ads are triggered by the phrase "LL Bean" which is in fact a trademark. And they are legally obligated to protect that trademark, or they lose it. And then any company can legally make clothes and put "LL Bean" on them.
The First Ammendment is not at issue here. Ever wonder why so many ads say "the next leading brand" and show a picture of a container similar to, but not identical to the brand they're referring to? It's because they're not allowed to use that brand's name in their ads. And in places where it is used, there's always a disclaimer that says "Product $foo is a trademark of company $bar".
It's about using a trademark in advertising and not acknowledging it. That's what LL Bean cares about. The spyware is a side issue.
That having been said, I don't think they stand a chance. The spyware will simply be modified to instead of look for "LL Bean" look for something like 'Outdoor clothing" and "Portland, Maine". Neither of which are trademarkable. And then LL Bean is SOL. I predict nothing useful will come of this.
Re:taking the high road(?); Careful what you wish (Score:5, Insightful)
You have a point there, but thats not the case in this situation. The argument L.L. Bean is trying to make is that Gator (I refuse to call it Gloria Corp) setup their pop-up program so that their competitor's advertisement would show up at their site.
Thats like saying, 'Welcome to L.L. Bean where you can fine products and clothes, but be sure to look at Gap's new shipment of jeans. Oh and J.C. Penney has a sale this week, you should take a look. Oh and since you're searching for shirts and ties, Nordstrom just announced a new line of this month check it out. Oh and enjoy your stay at L.L. Bean's website.'
The Internet lives beyond the US of A, ya know (Score:5, Insightful)
Re:taking the high road(?); Careful what you wish (Score:5, Informative)
This is not a First Amendment issue. If the situation were that surfers were voluntarily using a popup-generating program (remember www.thirdvoice.com? (thirdvoice wiki [c2.com]) then it would be, but this situation is different: Surfers who did not authorize the placement of the spyware software on their PCs are being presented with Nordstrom's advertising.
Nordstrom would have the right to bitch about LL Bean's operations in a voluntary medium, but Nordstrom has no First Amendment rights in a medium that entails the unauthorized installation of spyware any more than I have the right to come into your home with a bullhorn and lecture you about the evils of the bush administration. If the allegation of Nordstrom's paying money to a spyware popup-vendor is true, then a reasonable person could argue that Nordstrom has engaged in computer trespass or other illegal behaviour, and it would certainly have no First Amendment rights to do that.
Re:taking the high road(?); Careful what you wish (Score:4, Interesting)
The situation you describe is basically what lawyers are for.
There is a big difference between muzzling critics of a company who may or may not have a point about its actions, and, copyright infringement or, as L.L. Bean claims in the suit, another company's hijacking their investment in customer-relations by using spy-ware to pop-up ads for its competition whenever someone tries to visit L.L. Bean's website.
If, as L.L. bean claims in the article, its only use for pop-ups is brief questionaires to its customers, it should have the right to demand that that be the only thing that happens when you visit its website, in much the same way I am able to use my Sprint Cell phone without being forced to hear an ad for another carrier--even though the landlines that carry my call are leased from an affiliate of another cellular provider.
All things being equal, I still like their lawsuit. It's just good sense.
I'm surprised you dont see the false advertising (Score:5, Interesting)
Users click on this stuff thinking they're getting a windows or security update because they are being misled. That's false advertising and that's a serious problem. Do you want to do business with a company that says "hey visit our site" only to find your computer stuffed with spyware because of illegal business dealings? Maybe not you, but perhaps a non-techie you know would fall for it.
The speech argument would hold more water if we weren't already talking about:
1. Illegal activities: false advertising.
2. Speech "rights" of corporations. (commercial speech)
3. Misleading ads and software.
4. Privacy violating software couched in unreadable EULAs.
5. ActiveX installers ready to push any junk on a misconfigured browser.
Number 1 really trumps them all.
Its an illegal activity, and rightly so. Rights are limited when doing illegal things. If we write up a contract for a big herion shipment and I reneg you have no legal recourse because you knew you were doing something illegal with me.
Re:taking the high road(?); Careful what you wish (Score:3, Interesting)
Most interesting news all day (Score:2)
I agree with the author that this is a good strategy twist going after those who profit from it rather than those who write spyware.
Oh yeah, nearly FP
"Awright, let's GIT 'em..." (Score:5, Funny)
Re:"Awright, let's GIT 'em..." (Score:2, Offtopic)
Schools are so concerned about weapons, but they let me carry one on my back all my senior year in 1999. It's a 30 to 40 point dead weight when fully loaded with books... hurl that at somebody not expecting it and you knock them down and seriously hurt them. Drop it over a ledge to the lower floor and it's deadly.
Nearly every senior taking the AP-level courses at my school had one, we n
Re:"Awright, let's GIT 'em..." (Score:2)
Gato... ohwait, Claria uh (Score:5, Funny)
"Hell, people, we gotta come up with a new name, because most likely our company will have a bad name after this..."
"How 'bout Gator ?"
"Ohwait..."
Okay, now this is dirty (Score:5, Insightful)
There might have to be some reform on the internet advertising agencies' part here. Anyone know more about how they're set up?
Re:Okay, now this is dirty (Score:5, Interesting)
As to how these guys are organised? Just like the mafia only not as romantic and much more irritating.
Re:Okay, now this is dirty (Score:3, Interesting)
This is essentially the same logic as that French site suing Google for letting competitors use their trademarked name as an ad keyword.
IAN(please contain your astonishment)AL, but I simply can't see why that should be infringement. I'm aware that people hate Gator but this seems like a lousy precedent to set. Certainly if L.L. Bean wins, don't pay too much in the Google IPO.
Re:Okay, now this is dirty (Score:5, Informative)
"The only legitimate windows that would pop up on the company's Web site would be one-question customer surveys, she said."
What's happening, according to L.L. Bean, is the user inadvertantly installs spyware from a "free" game, etc. So you're surfing the net and go to L.L. Bean. The spyware detects the connection and then on its own launches pop-up ads from rivals. L.L. Bean says they do not use pop-up ads so it's a dead giveaway. Remember: L.L. Bean has a revenue stream. They don't need outside advertising.
The best way to explain this in bricks & mortar terms is your competition coming in and slapping their ads on or around your store. Especially without your permission!
Re:Okay, now this is dirty (Score:4, Insightful)
If you wanted to carry their suit further, they could sue you for opening up Nordstrom's alongside their website to comparison shop.
Re:Okay, now this is dirty (Score:3, Insightful)
Now, whether you actually consentually agreed (in any meaningful sense) to the person putting the ads there is a different matter. We need to attack the EULA, not the functionality of these programs.
Most people aren't consenting to what they get when they install adware/spyware, they just click next a lot and then their "freeware" is installed. Even if they re
Re:Okay, now this is dirty (Score:4, Insightful)
A slight difference, but an important one... these pop-ups, while still very much in the grey area legally, aren't hijacking any of LL Bean's content. The pop-up sofware is already on the users' PCs, so they're not coming from a hacked llbean.com.
It's still stupid though. I can see people not using IE due to ignorance/fear of unpopular software, but who doesn't use a pop-up blocker? Sheesh. I can't believe those things are still around.
Bollocks. (Score:3, Interesting)
Bollocks it is. The spyware hasn't been installed on the LL bean web site, their web site doesn't have their competitors adverts installed on it.
The closest thing would be someone following you around handing you pamphlets pointing out their competitors nearby stores when you get near an LL bean store. A similar and perfectly legal pr
Re:Okay, now this is dirty (Score:4, Interesting)
And how would you feel about a device which somehow exploited a flaw in your set-top box and noticed when you were watching a McDonald's ad and opened up a picture-in-picture window to display a Wendy's ad?
Re:Okay, now this is dirty (Score:3, Insightful)
claria... (Score:5, Interesting)
if they hadnt changed their name, it would have just said "the article mentions Gator." but claria needs to have their position reiterated, eh? guess their renaming stragegy worked, since claria is not automatically associated with "bad", as gator was.
Re:claria... (Score:5, Funny)
But hey, it's an easy on-topic first post for me to swing for whenever I see a Claria story as a subscriber.
The perp is AKA Gator... (Score:5, Informative)
Re:The perp is AKA Gator... (Score:3, Funny)
Good Idea, bad timing (Score:5, Insightful)
Maybe my grandkids will benefit.
True, but... (Score:5, Insightful)
Uh oh...strange precedents (Score:5, Insightful)
In other news...I run Mozilla -- so what popups?
Re:Uh oh...strange precedents (Score:5, Funny)
This guy primairly buys beer and tv dinners.
HIGHLY RECOMMEND THAT YOU RAISE HIS PREMEUM
-Grump
Re:Uh oh...strange precedents (Score:5, Insightful)
They follow a pretty similar method if you think about it. Flybuys and other programmes offer "frequent flyer points" as a reward, and they make it look like loyalty is the reason for it, but in reality it's the great market research they get.
Likewise, Claria and the like offer you a service, like Bonzi Buddy (choke) or keeping your system time in check (like that's not inbuilt in just about every O/S out there) or "You're computer is broadcasting an IP Address OMG OMG hackers lol!". Or in fact just by duping you so you click through the software install agreement when you foolishly used internet exploder to open just about any web page. Or by bundling the software with a shareware/freeware application (Like CuteFTP, a sinister betrayal that was).
Then the business model kicks into swing once you're duped in.
1) Offer incentive
2) Spy
3) Advertise
4) Profit!
Re:Uh oh...strange precedents (Score:3, Interesting)
And are you sure that they're competing products? I don't recall seeing a time where buying Coke gets you a Pepsi coupon. Maybe a Sprite coupon, which ultimately is Coca-Cola Corp. I vaguely remember hearing that most of the huge number of detegents are owned by about 5 companies.
Comment removed (Score:5, Informative)
As a helpful employee... (Score:5, Funny)
I'm sure you told them that all they had to do to get the coupons they wanted was buy the products they didn't like, right?
It's not the same thing. (Score:4, Insightful)
If a person visited "LLBean.com" and had advertising pop up, it would bge reasonable for them to conclude that LL Bean caused the advertising to pop up, since the site is llbean.com (trademarked) and LLBean is on the website.
If a competitor's coupon comes out of the receipt printer when you buy a product, it would not be a reasonable conclusion that the company which made the product caused the coupon to print out. As you can see, with the web pop-ups, there's damage done to the trademark (I get pissed that LL Bean is sending me popup ads when they're not), whereas with the coupons, there is no damage.
Second:
With the web popups, the trigger is LLBean.com - a trademark. With the coupons, the trigger is the UPC code, which is not trademarked.
It also the way to reduce spam (Score:3, Insightful)
Embarrass and FINE the companies that use spammers.
Steve
Re:It also the way to reduce spam (Score:4, Insightful)
um yea. (Score:4, Interesting)
That is an understatement. The only reason most of these spywear companies exist...is to make profit. Go after their source of profit. Same with spam. Take the profit out of it, and there is no reason for it to exist, or more realistically, it simply becomes too expensive a media to use. The reason it exists now is because of how cheap it is.
probably won't work, but still good news (Score:5, Insightful)
I'd hate to see the right to produce software get eroded, but on the other hand, something's gotta be done about spyware. This is an interesting approach: go after those that use the spyware (the companies that deliver ads through it) rather than those that vend the spyware. This has similarities to the recording industry going after those that use P2P to violate copyrights instead of those that vend P2P software.
But, my hunch is that displaying brand-targeting ads is a harder sell as illegal activity than distributing media you don't have rights to...
Re:probably won't work, but still good news (Score:5, Insightful)
Thankfully, Microsoft is adjusting and XP Service Pack 2 will make it a chore to go out of your way to install software when the browser prompts you to (there'll be a little flashing icon in the bottom of the MSIE page that you have to manually open and approve before you get your spyware). Combine that with the always-on firewall and preinstalled AV software and XP SP2 could be world-changing. But we have a responsibility here. If you can make your way onto Slashdot and read a post, then you have enough skill to make sure all of your XP systems are patched with SP2. Make sure all your friends and family who use XP use windows update and install Service Pack 2. (Or give them Linux or buy them a G5).
If spyware and other internet abuses are to be controlled it won't be by the plebians. It will be by the people who have the skill and motivation to control it.
Re:probably won't work, but still good news (Score:3, Insightful)
Horrible Idea (Score:4, Insightful)
I agree that spyware is a problem, but it's a problem that the user needs to deal with. LLBean has no right to tell me that I can't have Gator on my system providing me with ads for competing products, and they have no right to attempt to litigate such advertisements out of existence. I personally don't want to see those ads, and most people don't want to see them either, but I'll bet there are some people who are completely happy to have Gator infest their system and provide alternative options to LLBean.
This sort of thing makes me angry. Why don't they sue people over the content of background wallpapers that show competing products? It just doesn't make sense, they have no right to control the content of users computers and I hope they lose in court and lose big.
Re:Horrible Idea (Score:4, Insightful)
Re:Horrible Idea (Score:3, Interesting)
Re:Horrible Idea (Score:3, Interesting)
But the idea that a website owner can be able to dictate what other information is on a computer screen while you are visiting some other web page is a-okay? Because that's precisely what Gator (Claria) is doing. Some website owner (ie: Nordstrom) is dictating what information will be on your computer screen (ie: ads for Nordstrom) while visiting a web
Re:Horrible Idea (Score:5, Interesting)
Fine then. LL Bean gets to hire people to send to Nordstrom outlet stores whose job it is to stand between certain people and the merchandise they're looking at, and telling them about all the things they can buy at LL Bean. The customers are allowed to tell the LL Bean employee to "go away", at which point the LL Bean employee must immediately stop talking and move out of the way until the customers decide to look at a different item. Then it repeats. The victims are chosen by a person outside the store, who is asking for signatures for a petition to save little puppies. This person does not mention any affiliation with Nordstrom or LL Bean, but at the very bottom of the petition in fine print is the line "You may be bothered by certain people in certain stores." Neither the document nor the petitioner gives an explanation of "bothered" or a list of "participating" stores.
Uh-uh! (Score:5, Informative)
Re:Uh-uh! (Score:2, Informative)
What ever screw them, I'm using the hosts file form these folks [remember.mine.nu].
This keeps me away from I would say 90% of the crap out there. Everyone should get one, there is nothing like it.
I hope they lose (Score:4, Interesting)
This said, I hope LL Bean loses. If I choose to let a program show me ads(or anything else) when I visit their site, that's my business, not LL Bean's.
Gator's predatory practices are a problem, and they need to be reined in; but LL Bean has no right to say that I can't be shown an ad on a machine I own.
Re:I hope they lose (Score:4, Insightful)
What about the user's rights? (Score:5, Interesting)
Hey I hate adware tremendously but users have a right to have their browser to behave the way they want. I use a product called Pith Helmet that alters the way content is presented in Safari. Am I going to get sued for that, or the author? LL Bean is stepping over the line. They have no right to tell me what products I can have installed on my PC when I browse their site. If their products are better than their competitors, they shouldn't be afraid of the pop ups. It should provide a level of contrast that makes their products shine.
Damn, I hate siding with Gator on this one...
Re:What about the user's rights? (Score:3)
Re:What about the user's rights? (Score:2)
But this software automatically opens up (competing) ads based on the content of someone elses site. So in a way, its kind of stealing content, or at least the 'vibe' of a site. ie, the author may go to a lot of trouble to make their site give people the incentive to buy things advertised, and this
About damned time. (Score:2, Insightful)
Popups and spam are the scour
Who Owns the Screen? (Score:5, Interesting)
I can envisage legitimate services that could be caught by this. For example, I can imagine a service that watches webpages and provides warnings to the user of malware links, scams, etc. Such a service would be effectively outlawed by this precedent. If LL Bean suceeds, then no service or piece of software has any right to process an LL Bean page and trigger any other actions than the ones that LL Bean approves of.
I want to get rid of spyware (although I have yet to see any on my Mac yet) but wonder about the precedent this lawsuit sets and what it means for consumers rights.
Re:Who Owns the Trademark Name? (Score:4, Interesting)
Bean isn't suing to own your screen. Bean is suing companies that use Bean's name for profit -- their own. Bean's competitor's have contracted with Gator to make Bean's name result in a competitor's site appearing. It isn't the fact that the customer is looking at a parka that makes Bean's competitor's popup; it's the fact that Bean's trademarked name/website was used. To me this smells of pure trademark infringement.
We already agree that cybersquatting is illegal. If I bought the attwireless.com domain and made it redirect to cingular.com, I'd get my ass sued off and rightly so. But what Bean's competitor's are doing through Gator -- does this amount to the same thing? That is the question, and one might well be persuaded the answer is "yes".
Unaware (Score:4, Insightful)
And if they are, its easy enough for the spyware companies to sign up for one of the many web page banner ad services and display those instead. The banner ad companies will not be immediately aware that a particular id is not being displayed on a web page, and is instead being 'pinged' by a victims comp. When they do become aware, its a simple matter of getting a new id and distributing it to all the compromised machines through their auto updating features they all seem to have.
Re:Unaware (Score:2)
Ahh to fight the good fight (Score:5, Insightful)
There are a couple very important issues here...
Gator is NOT rewritting the actual webpage, it's only providing additional "pop-ups" in seperate windows that are targeted towards their "users" browsing habits. Essentially, they can claim they are providing a service by saying "ohhh, hey there lil user-buddy, looks like you're trying to buy a parka at LL Bean, perhaps we can interest you in this other parka over at Nordstroms", there is nothing wrong with that! Google does it all the time, Amazon does it... hell name one internet portal that does not provide alternatives based upon your current browsing parameters.
While I might not care for Gator/Claria/Satan, I do respect that until laws are passed that clearly define their behavior as illegal or somehow restrict their behavior and they defy those laws/restrictions, there is very little the courts will be able to do.
The users desktop does not become the property of LL Bean when a user goes to their website. Whatever happens on the desktop in a seperate window MUST be considered the consent of the user and LL Bean's claims should be dismissed as baseless.
Any action barring the display of competitors ads would threaten to destroy the advertising models of practically every internet portal in the US. and even more threatening... allow sites such as Google and Amazon to be flooded by lawsuits.
Re:Ahh to fight the good fight (Score:3, Informative)
Re:Ahh to fight the good fight (Score:3, Interesting)
To quote the LL Bean representative:
"These advertisers are illegally poaching on L.L. Bean's trademark," Kelley said. "Using our trademarked name as a trigger to which you want to serve your ads causes customer confusion and crosses the line into trademark infringement."
Their greivance is about brand/trandmark infringement
Ive been thinking for a while (Score:4, Interesting)
Re:Ive been thinking for a while (Score:3, Funny)
- I get email in my email client
- I mark the email as spam (or my spam filter does), and any URLs in the spam message are logged
Some time later, I decide to go to a site that has been referenced in spam sent to me. My Web browser gives me a popup window warning me "You're about to hit a site that's previously spammed you. Do you want to continue?". I think "Hmm, maybe I don't want to buy my new car/toy/whatever from these guys after all; I'll g
Why will they be more successful than UHaul? (Score:3, Informative)
My Bonzi Buddy always tells me the best deals :) (Score:4, Funny)
Firefox! (Score:3, Interesting)
Seriously, with even that old, obsolete behemoth IE coming out with popup blocking. I suppose in a couple of years popup advertising will be obsolete and completely unprofitable.
On the other hand, I'm sure spammers and scumbags like Claria will come up with methods that are twice as annoying and twice as hard to block.
Google (Score:5, Interesting)
Honestly, we'd probly all be rooting for google in this case.
Just a thought.
Re:Google (Score:5, Interesting)
Why? Because Google respects trademarks and if you do not want ads to appear with your trademark, all you have to do is let them know.
Many companies take advantage of this fact, do a search for New York Times... notice any advertisements? OK occassionaly there are some because creating an advertisement for Google automatically puts it on the search engine, but if any show up, they will be gone the next morning when a Google editor gets a chance to look at it. The exact same holds true for a search of L. Bean (do a search, the one adverstisement is their own, they have a monopoly on advertising with their search term on Google.)
Google forbids advertisers bidding on a search term if you write them a letter formerly requesting as much.
The question that comes up is... should companies with trademarks have to proactively fight to have ads removed on Google associated with their trademarks, or should they request being added to a whitelist first? Many companies do not mind advertising on Google with their trademarks ie: Microsoft... while others forbid it, ie: eBay, New York Times, L Bean.
The funny thing about eBay is that although they forbid advertising using such terms as e-Bay, eBay, e bay, ebaye (or anything similar) they (eBay itself) actively advertise on Google urging people to buy products from other manufacturers on the eBay website, they even give affiliates a list of recommended keywords if you want to make $$$ buying the keyworks on search engines and referring new users to eBay. See: http://keyword.ebay.com/
Any judgement coming out of this could also have a potential impact on Google if a company were to decide to seek damages from Google, but at least with Google you can ask nicely and they will remove advertisements.
No, not the same. (Score:5, Insightful)
If I go to LL Bean's site, and I get ads, my conclusion is that LL Bean is serving me ads. That's the damage to LL Bean's trademark.
An open letter to JC Penny (Score:4, Interesting)
I have shopped at JC Penny stores for more than 20 years. More than a third of my wardrobe has come from JC Penny during all that time.
I like the JC Penny stores.
But I dislike spyware and pop-up ads much more than I like JC Penny.
I will be shopping elsewhere until it is clear to me that JC Penny has adopted an advertising strategy that does not mess with my internet usage. JC Penny: know that in addition to what you have spent on pop-up ads, these have also just cost you a customer.
Thanks, LL Bean, for bringing this to my attention. I have never paid you much attention in the past, but I will be checking out your catalogs in the future.
It shouldn't take much of a boycott to get companies like JC Penny and Nordstrom to police their marketdroids more closely. And I wonder if something can be done with a slashdot poll wrt companies that subsidize the worst pop-ups?
How do they know (Score:3, Insightful)
Interesting Approach (Score:3, Interesting)
I may not be wording this correctly, but in a similar view, couldn't it be said that these ads are an invasion into the business' property?
Can you stand outside the door to KB Toys and hand out ads that say go to Toys R Us instead?
Corporations taking advantage of spy/adware (Score:5, Insightful)
This happened to my company (Score:4, Interesting)
I can't wait (Score:3, Funny)
I've always thought this was the way to kill SPAM too. Sue the companies paying for it.
Why this does not happen on Cable (Score:3, Interesting)
Just becuase it's done on the internet makes no difference this should be illegal and we should have laws against it. Every country has laws concerning hijacking of others signal they also should have the same that apply to internet ad's.
There are already cases on this (Score:5, Informative)
The issue here, as explained in the article, is trademark ("TM") infringement. To get TM infringement, one element is that there must be use in commerce. Spyware of this sort operates, as I understand, by having a list of keywords against which, for example, user queries can be compared. In WhenU's case, it had a list which included the TMs of it's competitors (it's clients' competitors, actually).
One court, in N.Y., granted an injunction holding that WhenU used it's competitor's TMs in commerce in two ways - one, in the file against which it compared keywords and, second, in that WhenU's window popped up when the competitor's webpage did (the court thought WhenU played off of the competitor, I think). Personally, I don't get the court's second point at all. WhenU did nothing to get any competitor's website to come up. An analogy might be if a business erected a sign near it's competitor's location - I am not familiar with any caselaw on this point, but I would imagine it wouldn't be TM infringement.
Another court, in Virginia, found the opposite, that inclusion of the TM in the keyword file was not "use in commerce".
A third jurisdiction, Michigan, sided with Vir. in the third WhenU case.
But this case is in Maine, so I guess it could go either way.
Wish We Could Get A Complete List Of Advertisers (Score:4, Informative)
I have notified Nordstrom's (where I shop a little and my wife shops somewhat often) that my wife and I will be boycotting them for one year, and it will become permanent if they do not make a public apology and publicly distance themselves from spyware-based advertising.
I also went to Claria.com, filled out an ad rate request form with a fake ID, and used the comment portion to let them know that I have notified Nordstrom's of my 1 year boycott and specifically attributed it to them using Claria. Of course, Nordstrom's apology won't be likely, because if they make an apology before the lawsuit is settled, L.L. Bean may be able to turn it against them.
But a boy can dream...
the broader issue (Score:3, Interesting)
The broader issue here is: who is responsible for what?
LLBean really should not be acting as if it owns the content of your desktop when you visit their site, because it doesn't. However, it is responsible for defending its trademark in a new environment where the applicability of previous legal precedents may be unclear. If we say that LLBean shouldn't defend its trademark in this way, then we must also agree that these tactics of its competitors should not jeopardize the trademark.
And who is responsible for the spyware? Not Gator, because everyone knows that manufacturers of software are not responsible for anything, whether the user has to acknowledge this by clicking "Agree" on a EULA or not. And for the same reason, Microsoft is not responsible for the loose security that often facilitates the perpetration of spyware on the unwitting.
I mean, really, what software manufacturers would have us believe is that they have no responsibility for what their software does or doesn't do, perhaps with the exception of specifically advertised features. Likewise developers of free software certainly don't want any (legal) responsibility for what they produce, since most can't defend a lawsuit. [You read it here first: common ground between free software developers, Gator, and Microsoft!]
So who is responsible? Well, at the moment it must be the users who are responsible for their own desktops, as difficult as that is these days. There might also be some responsibility with the legislature (and by implication, voters, including the many who are MIA) for not passing appropriate laws to clarify the situation. But some might argue that many of the laws already passed regarding the use of computers and the internet were premature, and as a result, made the situation worse. Personally I think it's because many of them were motivated by greed and fear, with the dependable support of the ignorant.
U-Haul lost a similar case, Editors nixed my story (Score:4, Informative)
Here's another version of the story [catalogagemag.com], which was online long before the CNN version. It also mentions that Claria Corp. was formerly known as Gator, which CNN seemed to miss.