mers2
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join:2004-03-20
USA
clubs:
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| reply to TKJunkMail
Re: Symantec taking cowards way out
Thus far all legal maneuvers have been made by malware companies against anti-spyware companies. The little guys don't have enough money to do anything definitive about it aside from having attorneys write responses and refuse to immediately back down. Symantec is basically taking it right back to them in an aggresive manner that has been sorely needed.
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Jason Levine
Premium
join:2001-07-13
USA
| reply to wriley
No, at most the court will deny the declaratory judgement. This means that it heads to full trial instead of giving Symantec (and other anti-spyware vendors) and automatic green light. Then the spyware vendors would have to fight (and win) against Symantec in court to establish a precedent in their favor.
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Jason Levine
Premium
join:2001-07-13
USA
| reply to Damon85
said by Damon85  :"Spyware" as a label could be considered defamatory in regards to the spyware makers. I think we should just call all of it "I-don't-want-it-ware" (not "you-don't-want-it-ware") because that's definitely a personal opinion and can't be construed as defamatory. I don't think so. The term "spyware" is just a label which is applied to software once the anti-spyware vendor thinks that the application has met certain criteria. For example, phoning home with potentially sensitive data without asking for the user's permission first.
The vendor is free to call any application whatever it wants. If they wanted, they could call Microsoft Office spyware. However, anti-spyware vendors rely on their reputation. List too many false positives (or don't list enough real positives) and their reputation is damaged. This keeps anti-spyware companies from either 1) threatening to list an application unless the developer does something for the anti-spyware company or 2) taking compensation from the spyware company to remove a listing.
When either #1 or #2 happens, pressure from users/the security community forces the vendor to either recant or lose market share. (See »Lavasoft Responds ).
If you call "spyware" defamatory, then could the term "spam" be considered defamatory? Could spammers sue anti-spam companies for daring to label their messages as spam? (I know some have, but could they sue and actually have a leg to stand on?) Should anti-spam companies tag the unwanted e-mail as "you-don't-want-it-mail"?
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Jason Levine
Premium
join:2001-07-13
USA
| reply to cdru
Good point. Worst case scenario is the judge denies the declaratory judgement. This wouldn't mean that Symantec couldn't call Hotbar "adware." Instead, it would mean that a full blown court case would need to occur. In other words, the spyware vendors might get a slight boost from knowing that there actually was uncertainty in the law. They wouldn't get a 100% license to sue anti-spyware vendors though.
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Karl Bode
News Guy
join:2000-03-02
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| reply to TKJunkMail
Not a personal "slam"; observation.
I've been watching you for a year grab the first spot in the comments section with a short blurb, then editing it later to make it just long enough your sig appears, so.....
But you're certainly welcome to your opinion the suit will do nothing, but I'm still not sure your opinion is based on any reasonable industry observations. |
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TKJunkMail
Enjoy the sun
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join:2002-03-03
Avalon, NJ
 ·Sprint Mobile Broa..
 ·Comcast
| reply to Karl Bode
said by Karl Bode : read the thread I linked to in our security forum. I can't see why anyone would be against a Symantec legal victory. I'll ignore your personal slams, but I have read the thread. And nowhere did I say I hope Symantec loses(brush up on YOUR reading skills). But I don't think Symantec will necessarily win and even if they do, will it help end this adware scourge.
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Karl Bode
News Guy
join:2000-03-02
Host:
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1 edit | reply to TKJunkMail
quote:
This lawsuit has almost no chance, even if Symantec wins, of ending the flood of ads by these adware companies.
Really, with all due respect, you should spam your blog less, and read more. You'll find nearly everyone who watches this sector thinks this is a landmark move.
If Symantec wins, a precedent is set that protects adware removal tools from having to dumb down their definition files, meaning better detection and removal.
Even if you want to keep pretending you understand this topic, I can't see why anyone would be against a Symantec legal victory. |
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cdru
Go Colts
Premium,MVM
join:2003-05-14
Fort Wayne, IN
| reply to TKJunkMail
said by TKJunkMail :And if they lose? Which is a 50-50 proposition. What does that do for the cause? Not really. Declaratory judgements, like the one filed here, are usually done after the company is reasonably sure that they are correct, but just want the extra weight of a judicial ruling to back it up officially. If the company was only 50/50 sure it was right, they likely wouldn't go after a declaratory judgement as it could just as easily go against them as it would be for them. If it went against them, and they continued on with their practices, additional punitive damages could be awarded in a later lawsuit as they couldn't say they didn't know they were in the wrong.
In this case, Symantec I think has correctly ascertained that they are in the clear, but they just want a judge to say so. Going this route is cheaper then a civil lawsuit filed by an adware company. Plus hopefully with a precedent, it stops further companies from going after Symantec. That what this does for their cause. The side effect is that it also has the likely potential to benefit not just them but the industry as well.
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kamm
join:2001-02-14
Brooklyn, NY
·T-Mobile US
| reply to Damon85
said by Damon85 :"Spyware" as a label could be considered defamatory in regards to the spyware makers. I think we should just call all of it "I-don't-want-it-ware" (not "you-don't-want-it-ware") because that's definitely a personal opinion and can't be construed as defamatory. Sure and we shouldn't call black for black but rather "not-so-white". |
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TKJunkMail
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| reply to wriley
said by wriley :So by your own explanation this could well give spyware vendor PRECEDENT which says that other companies cannot remove spyware and adware. You are right. Most here assume Symantec will win. I am not so sure, especially on appeal, and especially from a court in So.California, where the Supreme Court overturns them consistently. |
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JPCass
join:2001-01-23
Denver, CO
| reply to wriley
Eventually this issue will get to court somehow, and any ruling will at least set an effective precedent for the attorneys who are now going around and threatening the smaller vendors. So it's better that a player with resources and good lawyers be the one to take it to court.
And if the ruling goes against them, then I'd hazard a guess that Symantec and other big corporate players will throw their weight around to push for a change in the underlying laws. |
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Damon85
Premium
join:2004-12-25
Louisville, KY
| reply to Jason Levine
"Spyware" as a label could be considered defamatory in regards to the spyware makers. I think we should just call all of it "I-don't-want-it-ware" (not "you-don't-want-it-ware") because that's definitely a personal opinion and can't be construed as defamatory. |
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wriley
I'M Sick Of Fixing Your Computer.
Premium
join:2001-08-30
Edmonton, AB
clubs:  | reply to TKJunkMail
So by your own explanation this could well give spyware vendor PRECEDENT which says that other companies cannot remove spyware and adware. |
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Rogue Wolf
Is Kind Of A Big Deal In Yemen
join:2003-08-12
Troy, NY
·RoadRunner Cable
| reply to TKJunkMail
said by TKJunkMail :In any case, win or lose, IMO this case will have no lasting result on this battle at all. The adware delivering companies will just move out of the court's jurisdiction. If this problem is ever to be resolved, the law needs to be changed making the companies advertising thru these adware software companies responsible. And I doubt the politicians will ever take this step. I'm not certain you understand how the American legal system works. Precedent is one of the most powerful things in a court of law. And at any rate, this suit is likely less about stopping the adware companies themselves, and more about giving a legal shield to the ANTI-adware companies against constant frivolous threats of legal action. A company who has moved to another country to avoid legal action would have a much harder time initiating it against the likes of Symantec et al.
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Jason Levine
Premium
join:2001-07-13
USA
1 edit | reply to wriley
If the ruling goes the other way, it might hurt a lot more than spyware removal companies. If you can't express an opinion that a piece of software is spyware, can you express an opinion that a piece of e-mail is spam? Can you express an opinion that a product is dangerous to use or perhaps even just a bad deal? Could Google express an opinion that Website A is a better match for your query than Website B?
The "spyware" label is the opinion of the developers as to the quality of the product. The users aren't forced to accept this opinion. In fact, all of the spyware removal programs I've used require the user to confirm each product removal. If Symantec argues that giving the application an adware or spyware rating is well within their rights of expressing an opinion, I don't see them losing.
EDIT: Ignore that. As cdru pointed out, this is a declaratory judgement. Basically Symantec is asking the court to rule without a trial. If the judgement is denied, then all the spyware vendors gain is a full trial. If they win that trial, however, then my striked-out post might apply.
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kamm
join:2001-02-14
Brooklyn, NY
·T-Mobile US
| reply to Jason Levine
said by Jason Levine :The flood of ads, no. The flood of lawsuits threatening anyone who dares call their products adware, spyware, or malware? Yes. Correct and flood of counter-lawsuits by antispy sw vendors. 
If Symantec wins this suit, then there will be legal precedent establishing that their definition of "adware" is an opinion that they are free to express. Once this is established, then any lawsuit threats can be countered with a fax of this ruling and a "go ahead and sue me" note. I really don't see Symantec losing this one.
Completely agree. |
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Jason Levine
Premium
join:2001-07-13
USA
| reply to TKJunkMail
The flood of ads, no. The flood of lawsuits threatening anyone who dares call their products adware, spyware, or malware? Yes.
If Symantec wins this suit, then there will be legal precedent establishing that their definition of "adware" is an opinion that they are free to express. Once this is established, then any lawsuit threats can be countered with a fax of this ruling and a "go ahead and sue me" note. I really don't see Symantec losing this one.
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kamm
join:2001-02-14
Brooklyn, NY | reply to TKJunkMail
The lawsuit has definitely a good chance, I don't know what are you talking about.
And you're quite wrong again: if they win, ad companies will be sued 'en masse' by all the antispy sw vendors. |
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TKJunkMail
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Avalon, NJ
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| reply to kamm
said by kamm :You're completely missing the point, pal. Ever heard about precedent cases? This is one of them. And you are swimming against the tide, pal. This lawsuit has almost no chance, even if Symantec wins, of ending the flood of ads by these adware companies.
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kamm
join:2001-02-14
Brooklyn, NY
·T-Mobile US
1 edit | reply to TKJunkMail
said by TKJunkMail :said by Karl Bode :100% incorrect. The goal here is to set legal precedent for future cases showing detection and removal of these programs is legal. This aids Symantec's fight against all other adware vendors. In fact if they win, it aids all spyware removal companies. It should bring some absolutes to a very muddy argument. And if they lose? Which is a 50-50 proposition. What does that do for the cause? In any case, win or lose, IMO this case will have no lasting result on this battle at all. The adware delivering companies will just move out of the court's jurisdiction. If this problem is ever to be resolved, the law needs to be changed making the companies advertising thru these adware software companies responsible. And I doubt the politicians will ever take this step. P.S. LOL - 100% incorrect Karl?? I see you haven't lost your penchant for hyperbole. You're completely missing the point, pal.
Ever heard about precedent cases? This is one of them.
PS: I, for one, certainly welcome this and if Symantec winbs this case - which I expect -, I'll buy two subscriptions from them immediately (desktop+laptop), in return for their great action. |
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