November 10, 2005 12:00 PM PST

Spyware spat makes small print a big issue

A maker of surveillance software is using a product download agreement to attempt to bar detection by anti-spyware tools, raising questions about the legal scope of such agreements.

RetroCoder is threatening legal action against Sunbelt Software, representatives of both companies said Wednesday. The British company wants Sunbelt, maker of CounterSpy, to stop flagging its SpyMon software as spyware. RetroCoder charges that Sunbelt has violated the terms of the copyright agreement contained in its software, which specifically excludes anti-spyware research.

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What's new:
British surveillance software company RetroCoder is threatening to sue Sunbelt Software for violating its product download agreement, which bars anti-spyware researchers. RetroCoder wants Sunbelt's CounterSpy product to stop flagging its SpyMon software as spyware.

Bottom line:
The spat raises questions about the scope of such download agreements. But some lawyers say such restrictions in a download agreement would likely be seen as unfair.

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The matter poses yet another challenge for anti-spyware companies, which often face complaints from makers of software that is detected as a threat by their tools. This particular challenge, however, shouldn't be hard to overcome, legal experts said.

"A court could well conclude that this specific provision was unconscionable and thus unenforceable," said David Kramer, a partner at Wilson Sonsini Goodrich & Rosati, a Palo Alto, Calif.-based law firm.

SpyMon logs keystrokes and takes screenshots. It sells for $26 and is advertised by RetroCoder as a tool to monitor kids, spouses or employees. Before downloading the application, RetroCoder asks customers to agree to a statement that forbids its use by a researcher for an antivirus or anti-spyware company, or business related to these.

The SpyMon download agreement continues with a legal condition: "If you do produce a program that will affect this software's ability to perform its function, then you may have to prove in criminal court that you have not infringed this warning."

RetroCoder charges that Clearwater, Fla.-based Sunbelt broke the agreement, according to Anthony Ball, a spokesman for the British company. "In order to add our product to their list, they must have downloaded it and then examined it. These actions are forbidden by the notice," he wrote in an e-mail interview.

"Our program is not a Trojan or virus; it is used to keep a remote eye on your kids or employees."
--Anthony Ball, spokesman, RetroCoder

Furthermore, RetroCoder argues that SpyMon is not spyware but rather a surveillance tool. "Our program is not a Trojan or virus; it is used to keep a remote eye on your kids or employees," Ball said.

Debate has gone on for years over what constitutes adware and spyware, with manufacturers of certain applications defending them as legitimate tools. The terms are used various to describe software that pops up ads on a PC screen or that can log keystrokes, make screenshots and track a user's Web-surfing habits.

Makers of software judged to be adware or spyware often protest the labeling of their products as such by security software makers, to the point of threatening lawsuits. A proposed federal law aims

CONTINUED: Patently ridiculous?…
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