December 1, 2003 9:00 PM PST
Gator foe bitten, but still not shy
The legal game of cat and mouse between the two companies began when Gator, now named Claria though its software is still called Gator, launched a broad legal offensive to stop various companies from referring to its product as "spyware."
As part of a settlement signed Sept. 30, PC Pitstop--which scans computers for hostile and otherwise undesirable code--removed pages from its Spyware Information Center with such titles as "Is Gator Spyware?" and the "Gator Boycott List."
Gator had alleged trade libel, false advertising and tortious interference, among other charges, and in public comments raised particular objection to use of the term "spyware."
Spyware, according to both companies, describes software installed on a computer without the user's knowledge. Adware--Claria's preferred term for its product--is downloaded knowingly. The dispute over Claria's software, which often accompanies other software applications such as the file-sharing program Kazaa, appears to hinge on whether its download notifications are obvious or obscured by long license agreements and multiple download windows.
But both kinds of software alarm some privacy advocates because they monitor activity on a computer to serve targeted advertisements.
To replace the material it removed in September, PC Pitstop on Thursday plans to launch its Gator Information Center--which in many respects appears no less critical than its predecessor.
"The most expedient thing we could do after settling the Gator suit, rather than changing our site point by point in real time, was to regroup and put together something that still conformed to our agreement with Gator but allowed us to say the things we needed to say," said Dave Methvin, chief technology officer of PC Pitstop. "For example, we still detect Gator and recommend that people remove it. I certainly don't believe it's libelous."
Neither side has divulged details of the libel-suit settlement. But in a preview of the new anti-Gator site, PC Pitstop appears to be upping the ante against Claria and its Gator software while assiduously avoiding the term "spyware."
The site advances carefully worded arguments that Gator does, in fact, meet the definition of spyware because people download it unwittingly. One page details PC Pitstop's survey of 7,260 people on whose computers the company found Gator installed. Nearly three-quarters of respondents said they had no knowledge of the installation.
Claria representatives said they could not comment on the new site because they had not yet seen it.
Other pages on the site describe ways in which Gator can wind up on a computer, tell people how to remove it and urge those who have had problems with Gator to complain to the Federal Trade Commission's Bureau of Consumer Protection.
The site plainly advocates the removal of Gator in terms that may sound harsh for a company that faced a recent libel settlement.
"Gator should be removed from everyone's PC," reads one page of the preview titled "Our Position." "Our own experiences with GAIN and Gator applications show that they can reduce system reliability. Their background activity and resource usage can impair system performance. The ads they pop up can be distracting. Finally, the functionality offered by free Gator applications is usually available at little or no cost from other sources that have better license terms."
One of Claria's adware competitors, called WhenU, has met with some success this year defending its business practices in court. A federal judge last month handed WhenU its most recent win in a string of favorable rulings in its defense against U-Haul International, whose Web pages are targeted by WhenU's pop-ups.
Earlier this year, Gator settled a suit brought against it by The Washington Post. Other suits by catalog retailer L.L. Bean and hotel chain Extended Stay America have been consolidated under the jurisdiction of the Judicial Panel on Multidistrict Litigation in Washington, D.C.
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