I hate Zango.

Although the focus of our “Practical Lawyering in Cyberspace” class has been the approach the attorneys took, rather than the substantive issues they tackled, I can’t help but get sidetracked this week.  We were dealing with the Zango v. Kapersky Software case, whereas a spyware purveyor sued an anti-virus software seller for blocking their program. They claimed that Kapersky was interfering with the volitional act of their customers in downloading the software, when they know well the entire aim of their company is to make certain the download is not on purpose.  They have to – virtually noone downloads adware knowing that it is adware.

To be fair, they are required to do so as part of a package deal wherein they get free software.  But a stupid dress-up doll (Zwinky) or simple program like a game or screensaver is not such a grand program that many would be willing to be constantly interrupted with pop up ads in exchange for them.  Instead, they rely on buried EULAs, euphemistically phrased, to get “consent” and then bank that the end-user will be unaware where the sudden ads are coming from.  Evidence of this can be seen in the company’s evolution; like other spyware, Zango began as a completely non-volitional download which blocked itself from being uninstalled.  You don’t do that if you think customers will willingly make such exchanges.

It is only through back and forth struggles with the FTC, Attorneys General, etc that they have evolved at all.  They have been required to clearly disclose and get affirmative consent, not bury the agreement in those huge boxes that no one ever reads.  Of course, the clear warning only discloses that you get a “free toolbar” with the download; the malicious nature of the program is concealed as much as legally permissible.  According to Ben Edelman’s recent research, they are not complying with the FTC order and are still falling far short of even these pseudo-disclosures.

Why does this stuff have such a visceral impact?  Is it residual ire from purging these programs from my own, friends’ and family computers?  I would remove, they would re-install, operate covertly, fight me all the while.  I think my hatred remains.  Perhaps I should make use of this in my career/education, and funnel it into things such as this post.  Indeed they are tempting me away from my other reading, so with this I must sign off.

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