"Adware": Research, Testing, and Suits
Benjamin Edelman - Berkman Center for Internet & Society - Harvard Law School

[ Introduction - Research - Pending Suits ]

This is an archived page. For updates, see the current version of this page on benedelman.org.

Introduction

A number of firms currently design and offer so-called "adware" software -- programs that show advertisements on a user's computer screen. Some adware programs follow the design model anticipated by whatis.com's definition of adware: "any software application in which advertising banners are displayed while the program is running." But other programs expand beyond this definition by running continuously and by showing advertisements specifically tailored to the web sites that users visit. Companies making programs in this latter category include Gator (recently renamed Claria), WhenU, and 180Solutions.

Adware programs have prompted a number of legal challenges, as described in the pending suits section, below.

The author has followed these developments generally and has been retained as an expert in certain of these suits. The research section, below, indexes his work in these cases and his related research.

Research as to Adware Advertisements and Targeting

Gator / Claria GAIN

• Documentation of Gator Advertisements and Targeting (May 2003)
• Washingtonpost.Newswek Interactive Company, LLC, et al. v. the Gator Corporation - Edelman Expert Declarations (June 2002 - February 2003)

WhenU Save / SaveNow

• Documentation of WhenU Advertisements and Targeting (forthcoming)
• Quicken Loans and Wells Fargo v. Whenu.COM Inc. - Edelman Expert Declarations (September 2003)

180Solutions n-CASE

• Documentation of n-CASE Advertisements and Targeting (forthcoming)

Pending Suits against Designers of Adware

Gator

Gator's activities have prompted a number of legal challenges. This section attempts to chronicle key suits to the best of the author's ability, but this section is unlikely to be comprehensive; a thorough search of Google, LexisNexis, and/or Westlaw will likely yield additional cases and additional information as to recent updates. Send suggested additions to Ben Edelman.

• Facing complaints from the Internet Advertising Bureau as to Gator's activities, then including banner ads that tended to cover web site operators' own banner ads, Gator in 2001 sued the IAB and subsequently settled. Gator has subsequently sued Virtumundo (since settled), L.L. Bean, and PriceGrabber (citation).
• In 2002, Gator was sued by a group of media companies including the New York Times and Washington Post in the US District Court for the Eastern District of Virginia. This case settled before trial, and the terms of the settlement are confidential. The author worked in this case as a technical expert for the plaintiffs, and his declarations are available, as are selected other case documents.
• Gator has also been sued by Extended Stay America (District of South Carolina), Hertz (opinion as to Gator's requested stay of proceedings) (New Jersey District Court), Lending Tree (Western District of North Carolina), Overstock.com, Quicken Loans, Six Continents Hotels (Northern District of Georgia), TigerDirect (Southern District of Florida), UPS (Northern District of Georgia), and Wells Fargo, among others. A footnote in the Hertz opinion provides citations to the majority of these cases.
• In 2003, Gator moved for consolidation of these cases as well as its declaratory judgment actions against L.L. Bean, Virtumundo, Extended Stay America, PriceGrabber.com, and Tiger Direct; it asked that these cases be consolidated in the US District Court for the Northern District of California. (See Schedule of Matters for Judicial Panel on Multidistrict Litigation, March 27 hearing session, PDF page 7.) These cases were consolidated to the Northern District of Georgia, as detailed in the Multidistrict Litigation Transfer Order (PDF).
• In 2002, Weight Watchers sued competitor DiscreetDrugs.com, which had reportedly used Gator to cause its advertisements to appear when users requested the Weight Watchers web site.

WhenU

WhenU has been sued by 1-800 Contacts, Overstock.com, Quicken Loans, U-Haul, Weight Watchers, and Wells Fargo. See summary judgment order (PDF) in U-Haul case (dismissing claims against WhenU) and preliminary injunction order (PDF) in 1-800 Contacts case (granting preliminary injunction enjoining WhenU from delivering certain pop-up advertisements).

The author works as a technical expert in the Quicken Loans and Wells Fargo matter.

Related Suits

New.net v. Lavasoft: Claim by designer and distributor of controversial NewDotNet addressing software against designer of software that, upon a user's request, removes NewDotNet and other programs deemed adware. Alleges false advertising, unfair competition, trade libel, and tortious interference with prospective economic advantage. Complaint.

The author anticipates additional research in the future as to these and similar programs. Please send email with suggestions or requests.

Last Updated: December 24, 2003 - Sign up for notification of major updates and related work.