May 29, 2007
Zango Claims Spyware Doctor SE Surreptitiously Deletes Its Software
By Eric Goldman
Zango, Inc. v. PC Tools Pty Ltd., 07-2-15844-8SEA (Wash. Superior Ct. complaint filed May 15, 2007)
We've seen a fair amount of tussling between adware vendors and anti-spyware software vendors, including a battle over the incorporation of' "good samaritan" immunizations for anti-spyware vendors in proposed anti-spyware legislation (see, e.g., here and here). However, litigation between the two camps has been relatively rare, so this case (if it doesn't settle like most of the precedents) might help shape the contours of anti-spyware software vendors' duties as well as influence the pending anti-spyware legislation in Congress.
Here, Zango claims that PC Tools' software, Spyware Doctor Starter Edition, (1) mislabels Zango's software as an "elevated risk" and (2) automatically disables Zango's software from functioning without giving users notice, which prevents new installs and prevents current users from using existing installs--including those users who have paid a premium subscription allowing them to use Zango's software pop-up-free. While these effects alone would be problematic for Zango even if Spyware Doctor were an obscure program, Spyware Doctor SE has the added profile of being bundled in the Google Pack.
While I can see why Zango would be upset enough about this situation to sue, bringing a lawsuit has numerous downsides. First, the facts may not be in its favor; SunbeltBlog has had difficulty replicating some of the results. Second, lawsuits over classifications threaten anti-spyware vendors' editorial integrity (and PC Tools is claiming that was Zango's intent), but fortunately those editorial judgments should be completely protected by 47 USC 230(c)(2). Third, Zango isn't particularly popular in the anti-spyware crowd, so their enforcement actions bring extra scrutiny.
With the respect to the claim that Spyware Doctor disables Zango, this case reminds me of the fracas (that matured into a lawsuit) between Avenue Media and DirectRevenue back in 2004, where Avenue Media claimed that competitor DirectRevenue was surreptitiously kicking its software off users' hard drives (the case reached a detente).
While it would be tempting to dismiss the Avenue Media/DirectRevenue lawsuit as a piratical battle between untouchables, there are other examples where company A deletes company B's software with minimal notice. Most prominently, I still can't fathom how Microsoft gets away with unilaterally wiping software off users' hard drives (my recollection is that AOL has done the same thing, but I can't find my documentation of it now). At some point we're going to have reach a social consensus about what level of user authorization is required for one software program to annihilate another program. Maybe this case will help us understand that issue a little better.
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