While we tend to think of UCITA as being dead outside of a few jurisdictions, its evil spirit is still very much with us. It's haunting us in the form of the spyware problem, as I think spyware researcher Ben Edelman's latest piece on spyware installation methods amply illustrates.
Edelman provides a step-by-step examination of all the deception that can lie behind one "I agree" click to an innocuous-looking license agreement. 3D Desktop's Flying Icons screensaver is initially presented to the user as shareware available for a 15-day free trial. Only by scrolling down in the little text window to the end of the EULA does the user find a hint that there's another component to the deal. If you install the software, you're also agreeing to the terms of something called Blazefind. The only way to find out what that means is to follow a link to Blazefind's EULA.
When Edelman followed that link, the Blazefind license turned out to be the EULA for "Windows ControlAd" software from CDT. Of course, in order "to give surfers a rich Internet experience," CDT was going to install programs from 180Solutions and others. And by agreeing to the CDT EULA, one in turn is also agreeing to the license terms and privacy policies for 180search Assistant, Internet Optimizer, TopRebates.com, and Target Saver. (The Blazefind license and the mix of programs it says it will download have changed slightly since Edelman conducted his research, perhaps due in part to 180Solutions' takeover of CDT.) So, with just one click, one "contractually" agrees to not only the 3D Desktop license but six different EULAs and the installation of a whole bunch of spyware. Or adware, if you think there's a difference.
It probably won't come as a surprise to you that Edelman found that those four weren't the only programs that were loaded on his computer in the process. But that's covered too, since the CDT EULA grants the company permission "to install new applications, at any time, in its sole discretion with or without your knowledge and/or interaction." And, just to add to our growing list of outrageous terms, Edelman pointed out this little gem in the arbitration section: "You also agree to pay CDT $300 per hour to attend arbitration including transport time."
In other words, click OK to a shareware screensaver's cryptic little license, and you have given away control of your computer and your privacy. It's your fault you didn't spend hours and hours typing in URL after URL to read thousands and thousands of obfuscating words to decipher who and what you're really dealing with. And if you were to try to get some redress, well, you have to pay them more for their time then you could possibly win.
When 180Solutions, Claria/Gator, or any of these other outfits claim their software is only installed with the "consent" of the user, they actually are echoing the arguments always made by UCITA proponents. By the way, as I foretold, those same old arguments are now being advanced by some of the same old folks to say that EULA terms must trump fair use in the Blizzard case -- another place where the UCITA phantoms are taking all too corporal shape. Businesses must have "freedom of contract," they claim, no matter how one-sided that freedom is. The spirit of UCITA, like the essence of today's spyware business, is that what's buried deep in the sneakwrap is all that counts.
Of course, some of the same software companies who made UCITA a reality now see fighting spyware as a marvelous business opportunity. I wonder if they understand how much they helped to create this monster that now consumes so much of the time, money and energy of so many of their users? At some point, though, these firms are going to have to choose whether they are still on the UCITA side or if they are really sincere about fighting spyware. If not, eventually the anti-spyware business will be all that's left of the software business, and then they'll be haunted by some ghosts that are even more frightening than the specter of a semi-dead law.
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