Whenu Finally in Court Trouble

[Catalyst]

Dec 31st

"A federal judge dealt a setback to adware maker WhenU.com's fight to legitimize its contextual-advertising system.

Judge Deborah Batts of the U.S. District Court in Manhattan this month enjoined WhenU.com from serving ads for a competing service on the 1-800 Contacts Web site, ruling that the ads violated 1-800 Contacts' trademark and potentially confused consumers."

Read the rest here:
[dmnews.com...]

[eWhisper]

Since these lawsuits are being run in so many different states, it's hard to tell if anything will come out of them win or lose.

Now if someone could just win a lawsuit against changing affiliate ids...

[KenB]

What we need is a real lobbying group for affiliate members that could lobby for laws that target scumware practices. Judges can't really do much without laws upon which to pass judgements.

[hannamyluv]

Lawmakers and judges can't really do much if they don't understand. I honestly do think that's the only reason WhenU and companies like it have not been shut down. It's b/c most people do not understand exactly what it does.

[KenB]

Hence we need lobbiest who do understand the issues to educate lawmakers.

[too much information]

It's about time a judge made a good decision about this. My first experience with this nonsense was when I went to my own website and found several words on the page highlighted in yellow. They were ads for other sites, and I didn't create them.

It seems to me that if you sell advertising space on your site or make some amount of money by serving AdSense or similar that it is a clear case that these companies are stealing from you.

I spent some time working on a statement that I planed on sending to some of these advertising networks stating that I charge for ads on my site, and if I detect their ads being served it would cost them $--.-- for each occurance. Unfortunately I never found an address to send it to them.

I didn't think it would really make them stop showing on my site, but it would be clear documentation that they were informed of my advertising requirements before serving their ads if I ever wanted to take any action against them.

[KenB]

Personally I added the following statement to my terms of service. It puts users on notice and gives them some tools to clean up their computers. I also believe I have neutralized eZula TextTop that was described above.

Scumware and Adware

The use of scumware or adware while viewing this site is strictly prohibited and we reserve the right to employ any countermeasures we deem appropriate to disable any scumware or adware or to deny access to content provided by this site to those who are using scumware or adware.

For the terms of this prohibition, scumware and/or adware, are defined as third party programs that are installed on the users computer or are part of a service used by the user that:

• display advertisements that are targeted based on the content of the webpage being displayed;
  
• place additional links or ads within the webpage itself;
  
• obscure existing advertising by placing different ads or links directly on top of advertising displayed on the webpage by us;
  
• subvert advertising links on the webpage or employ other tricks to steal the advertising revenues that those links generate; or
  
• launch popup or popunder advertising in relation to this site (please note that we DO NOT make use of pop-up or pop-under advertising).

This definition includes but is not limited to: unregistered copies of Opera 7.2+; eZula TextTop; Gator/GAIN/Claria; BargainBuddy; XupiterToolbar; WhenU; etc.

In most cases the user is totally unaware that scumware or adware programs have been installed on their computer as it gets sneaked onto their computer when other shareware/freeware programs are installed. It is very comon for computers that have P2P music swapping software installed to have scumware/adware installed as well. If you would like to see if you have any parasitic software installed on you computer, you can do a quick check using on the [doxdesk.com...] (Editors note: not my site). You can learn more about scumware at [Scumware.com...] (also not my site).

[Trisha]

Ken,
That's great! Do you mind if I use your statement as a basis for one to put on my site?

[nativenewyorker]

KenB,

If you deny access to your site to visitors who have scumware loaded on their machines, how are they ever going to read your TOS?

The problem with educating your visitors about scumware / adware / spyware is that you will end up cutting your nose to spite your face. Specifically, some web surfers will end up installing software to wash their hard drives of cookies and /or block advertising that would generate revenue for the website they are visiting. It really makes no sense to me why some affiliates promote software to erase cookies? Don't they realize that they are only hurting themselves?

Ted

[KenB]

Trisha, I posted this part of my TOS for others to modify to suit their needs, so feel free to rewrite it as you see fit.

nativenewyorker (Ted), you are correct one has to be careful how they block users. My preference is always to disarm scumware, adware and ad blocking software rather than outright blocking users. At this point in time I only redirect users who APPEAR to be using an unregistered copy of Opera 7.2+ or who are using ad-blocking software I can't disarm.

Opera users who fail my unregistered Opera test get redirected to a special page addressing my grievance with unregistered Opera. Likewise users who are blocking my banner ads get redirected to a page explaining why I don't allow users to access my site if they are blocking my ads. The ad blocking page also provides instructions on how to disable the most common ad blocking programs.

While I do use a JavaScript to disable TextTop, I have not yet implemented any measure to detect other scumware mainly because I cannot test the routines as well as I would like, as I don't have a spare computer that can be sacrificed for the testing purposes.

The reason I wrote my TOS the way I did was simply to put people on notice that I reserved the right to take more drastic measures.