NY v. DirectRevenue Hearing Transcript

By Eric Goldman

I previously blogged on the New York v. DirectRevenue case and the amicus brief that David Post, Scott Christie and I filed. Last week, there was a hearing on DirectRevenue’s motion to dismiss. The transcript. Note that all transcript references to “Mr. Christie” actually should be to Justin Brookman of the NYAG’s office.

One exchange that caught my attention: the judge got feisty with Brookman over the NYAG’s continued misuse of the term “spyware” to describe software that lacks a report-back feature (see the Merriam-Webster definition of spyware). On page 17, the judge says to Brookman:

Wait a minute. You called it spyware. And then when your adversary says wait a minute, none of this is alleged in their papers. Forget spyware. It’s not spyware unless you tell me different.

I’ve complained before about the problems created by the lack of standard nomenclature for adware and spyware. This sloppy nomenclature can benefit plaintiffs to the extent they can use the term “spyware” as a scary smear tactic. But as the judge’s retort indicates, it can also backfire when judges realize that the term is being used to misportray the facts.