April 28, 2005
Adware Vendor Sued by New York Attorney General
New York v. Intermix Media (complaint filed April 28, 2005). Elliott Spitzer has sued software vendor Intermix Media (formerly eUniverse) for violations of New York’s consumer protection act, false advertising and common law trespass to chattels based on Intermix’s “spyware/adware.” New York press release. AP story.
The complaint focuses on Intermix Media’s bundling of adware with other software (games, utilities, etc.). Specifically, the complaint alleges:
“Intermix offers consumers either no notice or only token notice about the hidden spyware programs. Intermix either fails to disclose these additional programs in any manner, or hides mention of them deep within lengthy, legalistic license agreements. Even in the latter case, the information Intermix does provide about the spyware programs is vague, incomplete and often factually incorrect….. In every single test, Intermix provided either no notice or woefully insufficient notice about Intermix’s bundled spyware programs.”
The complaint also targets the ways in which Intermix allegedly intentionally made it difficult to figure out how to uninstall the program.
This case is important because it might help define the line about how much disclosure is sufficient. Right now the law is extremely unclear; even the New York complaint lumps together no disclosure and inadequate disclosure, and in my mind these are two very different standards. Failing to disclose means no one would understand; inadequate disclosure depends on the consumer, their expectations, and how much responsibility the consumer has to figure things out for themselves. As I’ve discussed before, part of the problem is that software vendors have to make a long list of disclosures, so the disclosures will never be easy for consumers to understand. As Deirdre Mulligan has claimed, even full disclosure doesn’t necessarily change behavior. So more clarity on the applicable legal standards for disclosure would be useful, but I’m not immediately convinced by the complaint that NY is drawing the line in the right place.
This case may also reinforce that Congressional action may be neither necessary or prudent. If states can enforce their current consumer protection laws, then Congress getting into the act (especially through rigid command-and-control laws like HR 29) adds little value. Even if NY loses the case, the mere fact that the case was brought indicates that the current law can be used to combat bad actors when they are engaged in bad behavior.
UPDATE: Wendy Seltzer on the lawsuit.
UPDATE #2: CBS Marketwatch (reigstration required) reports that Spitzer may be planning more lawsuits against adware vendors, adware distributors and potentially advertisers/revenue sources.
UPDATE #3 (10/21): The formal settlement was finally announced.
Posted by Eric at April 28, 2005 10:45 AM | Adware/Spyware
Good luck NY! I think, I thunk -->
Due to the inherent complexity in software, I think it is practically impossible to decide what constitutes spyware, let alone what is adequate disclosure of what might or might not be considered spyware. More importantly, is this a threat to clickthrough licenses? Where is the public policy going? Will legislatures/congress/courts force clickthrough licenses to be understandable/more readable by the non-legal community?
How about a bunch of flashy pop-ups disclosing the level of spyware you might be installing? The larger and flashier the pop-up, the more invasive spyware you might be installing! (I have been studying for finals too much – this is actually funny to me right now)
Where does M$ or Apple fit into the spyware picture? Especially, when the NY AG uses words like the spyware “can slow and crash personal computers” and “undermine productivity and in many cases frustrate consumers' efforts to remove them from their computers[.]” Surely M$’s and Apple’s operating systems fit this description to some extent.
“I tried uninstalling that dang Windows Media Player, but I couldn’t, and it is eating my hard drive space that therefore slows done my computer, which sometimes crashes.” -- Anonymous Window’s User.
I think we know some outer boundaries--software that's clearly malicious, and software that's clearly benign. Unfortunately, there's a huge middle where bright minds would disagree (WMP is a great example). I did make the observation about the looming hyperbole of mandated pop-up disclosures becoming another form of unwanted content in my talk at Boalt--see http://blog.ericgoldman.org/archives/2005/04/boalt_spyware_t.htm. Eric.
Posted by: Eric at April 30, 2005 10:07 AM