Symantec Sues Hotbar for Declaratory Judgment That Symantec’s Classifications/Descriptions Do Not Create Liability

Symantec Corp. v. Hotbar.com, Inc., Case No. C05-02309 (N.D. Cal. complaint filed June 7, 2005).

This complaint was filed 3 weeks ago, but I was only able to get a copy of the complaint today. Even then, I have not yet seen or uploaded the 169 pages of exhibits; I will try to get those online soon. [UPDATE: see below–Exhibits are now online]

As helpfully catalogued by Ben Edelman, a fair number of software vendors have demanded that anti-spyware vendors or anti-spyware critics stop characterizing their software as “spyware” or “adware.” In this complaint, Symantec fights back against one such demand, seeking a declaratory judgment that Symantec’s descriptions and characterizations of Hotbar’s software do not create legal liability.

Specifically, as best as I can tell from the complaint (without the exhibits), Symantec has characterized Hotbar’s software as “adware” (Para. 32), which Symantec defines as “Programs that facilitate delivery of advertising content to the user through their own window, or by utilizing another program’s interface. In some cases, these programs may gather information from the user’s computer, including information related to Internet browser usage or other computing habits, and relay this information back to a remote computer or other location in cyber-space. Adware can be downloaded from Web sites (typically in shareware or freeware), email messages, and instant messengers. Additionally, a user may unknowingly receive and/or trigger adware by accepting an End User License Agreement from a software program linked to the adware or from visiting a website that downloads the adware with or without an End User License Agreement.” (Para. 9).

In addition, Symantec described Hotbar’s software as follows: “Adware.Hotbar adds graphical skins to Internet Explorer, Microsoft Outlook, and Outlook Express toolbars and adds it [sic] own toolbar and search button. These custom toolbars have keyword-targeted advertisements built into them. Adware.Hotbar can send information on browsing habits to various servers, which may be used for targeted marketing.” (Para. 34).

As far as I can tell, these two statements (the labeling as “adware” and the description of the software) comprise the entire set of “statements” that Symantec is concerned about creating liability. Symantec seeks a declaration from the court that the characterization and description:

· Is accurate

· Does not create trademark infringement

· Is not trade libelous or disparaging

· Does not intentionally/negligently interfere with contract

· Does not intentionally interfere with prospective economic advantage.

These requests indicate the types of claims that Symantec feels that Hotbar could theoretically bring against Symantec. Presumably, these also represent the types of claims that software vendors might generally bring against anti-spyware vendors or critics.

So far, so good. However, I was surprised at how many seemingly extraneous and gratuitous facts were alleged in the complaint. It appears that Symantec alleged a bunch of facts whose only relevance is to illustrate how Hotbar is not a good corporate citizen. While I know many anti-spyware vendors and critics feel this way, Hotbar’s corporate citizenry has absolutely zero relevance to the merits of Symantec’s classification or description.

Some examples of the gratuitous remarks. First, the complaint spends several paragraphs talking about “spyware” and how lots of institutions don’t like Hotbar’s software. I assume this is designed to make readers of the complaint think negative thoughts about Hotbar by implicating that it might be spyware. Only problem—at least as alleged in the complaint, Symantec never called Hotbar “spyware” either in the classification or description at issue, making all of the discussion about “spyware” completely irrelevant to the complaint.

Second, the complaint makes extraneous remarks such as that Hotbar has a really long EULA (Para. 24) and that it targets its application to kids (Para. 26). True or not, these facts once again have nothing to do with Symantec’s description or classification (i.e., Symantec’s definition of adware does not implicate either EULA length or target audiences).

I understand litigators play hardball; that’s why they get paid the big bucks. However, litigators can go too far, and personally I think it’s unprofessional to put facts in a complaint that have no relevance to the causes of action but instead serve only to smear the defendant’s character. I’m not 100% convinced that happened here; perhaps the exhibits make some of these facts relevant. If not, then these facts should not be in the complaint, and Hotbar probably could get the judge to strike them if it chose to go that route. Further, if these facts are truly irrelevant, then I find their inclusion in the complaint entirely consistent with the general anti-spyware zealots’ campaign to misdirect and obfuscate the real legal issues in a hope that sufficient taints by association can lead to their desired outcome regardless of the law or what constitutes the best social outcome.

Despite the complaint’s seemingly gratuitous attempt to smear Hotbar, I nevertheless applaud Symantec for standing up for its classification and description. I can’t opine on the merits of Symantec’s allegations or the merits of its case; that’s for the court to decide. However, I remain deeply troubled that software vendors are attacking anti-spyware vendors and critics solely to bully them into changing their legitimate opinions. We need room for honest critiques of software vendors, and nastygrams can distort the marketplace by excising helpful but critical comments that consumers need to know.

Therefore, we need some counterweight against the senders of bogus nastygrams to discourage them from sending such letters without fear of negative consequences. I’m a little disappointed that Symantec—if they really believe in the accuracy of their classifications and descriptions—didn’t try harder to find some affirmative causes of action it could have brought against Hotbar based on their nastygrams.

Finally, the complaint indicates just how much we would all benedit from consistent, widely-accepted definitions of adware and spyware. Symantec’s complaint introduces no less than 6 different definitions of adware, each with their own unique nuances. I know the CDT is leading an effort to come up with good definitions, and I’m watching this effort closely. I remain hopeful but cynical that we can reach consistent definitions so that we can at least all speak the same language.

UPDATE

Ben Edelman has graciously agreed to host the 6MB+ of exhibits, which unfortunately came off PACER in seven different PDFs.

Exhibits A-E

Exhibits F-H

Exhibits I-J

Exhibits K-M

Exhibit N (part 1)

Exhibit N (part 2)

Exhibits O-Q

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