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If You Don't See Me For A While, It's Because I'm Reading...

Anything I can get my hands on about a case called Sotelo v. DirectRevenue, which apparently holds that spyware can constitute trespass to chattels. (Hat tip to Instapundit.)

The case is being pursued the the Collns Law Firm, but the only document I can find on a public website so far is the order not to dismiss. (See here.) Lexis doesn't seem to have the case yet, so I'm searching everywhere I can. Taking time only to tell you all the good news, of course.

(Right, I got all of that wrong. The only record that I've found with regards to the case is the motion to dismiss, which dates from August 29th. There doesn't seem to be a ruling so far, despite the claim in the first paragraph of the USA Today piece, just enough to survive dismissal. That should teach me to write things quickly because I'm excited. Blame it on all the spam I've been peeling off my machine.

The case is available on Lexis, and the only filed opinion is the one I linked above. The case is Sotelo v. DirectRevenue, LLC, 384 F. Supp. 2d 1219.)

If you've got a chance, it's well worth reading the case just to watch a number of spurious defenses get raised. I particularly liked this:

DirectRevenue and AccuQuote also argue that each advertisement that plaintiff alleges he received as a result of Spyware "would have contained a link with yet another opportunity to view the EULA." According to DirectRevenue and AccuQuote, clicking on a small button with question mark in the corner of the pop-up advertisements leads to additional information about Spyware, another opportunity to read the EULA, and instructions on how to uninstall Spyware. The question box does not indicate that it links to information regarding the source of the advertisements or to any kind of user agreement, however. Moreover, by the time plaintiff began receiving the advertisements Spyware had already been installed, and the computer damage had begun.

I remember getting Ceres off of other people's PCs, and the whole thing was a nightmare. The question mark in the corner of the pop-up? It looked a lot like the question mark that appears in a lot of Windows XP windows to indicate "help." No usability expert would seriously consider a question mark to be an adequate symbol for "click here to read the EULA," especially positioned so close to another mark with a similar meaning. Making that argument is either an admission on the part of DirectRevenue that they're deceptive, or an argument that they're incompetent.

Of course, for "everything but the kitchen sink," the plaintiff's allegations deserve an award:

Plaintiff also alleges that Spyware and the resource-consuming advertisements sent to a computer by Spyware cause computers to slow down, take up the bandwidth of the user's Internet connection, incur increased Internet-use charges, deplete a computer's memory, utilize pixels and screen-space on monitors, require more energy because slowed computers must be kept on for longer, and reduce a user's productivity while increasing their frustration.

Let's face it, the last one is the significant cost, although the first few are pretty good. But require more energy because slow computers must be kept on for longer? I'd hate to have to monetize the microscopic damage of that. On the other hand, how about: the user is required to find a PC-fluent friend who can remove all of the noxious software that the Ceres 'uninstaller' refuses to clean up?

The part of the case that interests me most: how do you distinguish Intel v. Hamidi? (That's the case in which Intel wanted to sue a former employee for trespass to chattels when he sent quite a few emails to their employees.) The court specifically addresses Hamidi pointing to the fact that the plaintiff alleges more damage on behalf of his computer. And again, with Ceres I would believe this. At the end of the day, none of Intel's computers were going to be burdened for a microsecond by Hamidi's emails, but some pretty good desktop PCs will slow to a crawl when Ceres got hold of them.

In any event, keep an eye on the Collins Law Firm and their work in this area: if they manage this case, I hope the next thing they look into is comment spammers on blogs.


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I'm waiting for them to get prosecuted under 18 U.S.C. 1030... sub (a)(5)(a)(1) seems to apply.
See "CompuServe v. Cyber Promotions", 962 F. Supp. 1015.

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