February 09, 2005
More on Utah Spyware Law Amendments
I finally had a chance to look at the proposed amendments to the Utah Spyware Control Act. They are much worse than I imagined! The law talks about spyware but instead makes adware illegal in Utah--regardless of how the software is installed, any disclosures made by the adware vendor, and any consents given by consumers. In other words, a consumer may expressly and unambiguously want the software but the Utah law would deny them the opportunity to have it.
The proposed law represents a frontal assault on the use of keywords to deliver content to consumers. The law prohibits client software from using any trademark or domain name to trigger ads. As far as I can tell, the law permits any trademark owner to veto any sale of their trademark, regardless of context (i.e., Apple Computers could veto any ad triggered by the word Apple, even if the ad was selling fruit). To ameliorate this, the statute says: “This chapter does not preclude any person accused of violating this chapter from asserting any fair use or other defense that is available to persons alleged to have engaged in trademark infringement.” But I don’t understand how these defenses would work. Plaintiffs would not be suing for trademark infringement, so how can a defendant claim trademark law defenses? The law also protects against the use of non-trademarked domain names to trigger ads, so what trademark defenses are available against those?
The law gives a private cause of action to trademark owners but not consumers. This law is not about protecting consumers, and anyone who might claim otherwise is lying. This is pure anti-competitive protectionist rent-seeking behavior by a few trademark owners in Utah (like 1-800 Contacts and Overstock.com) using legislators as their shills. Shame on all of them.