See you later, anti-Gators?
By Paul Festa
CNET News.com

In an effort to improve its corporate reputation, adware company Gator has launched a legal offensive to divorce its name from the hated term spyware--and so far its strategy is paying off.

In response to a libel lawsuit, an antispyware company has settled with Gator and pulled Web pages critical of the company, its practices and its software. And other spyware foes are getting the message.

There is this feeling out there that they won the lawsuit, and people are starting to get scared, said one employee of a spyware-removal company, who asked not to be named. We haven't been sued, but we've heard that other companies are being sued for saying this and that, so we've changed our language on the company Web site.

Gator often distributes its application by bundling it with popular free software like Kazaa and other peer-to-peer programs. When downloaded, Gator's application serves pop-up and pop-under ads to people while they're surfing the Web or when they visit specific sites. Ads can be keyed to sites so that a pitch for low mortgage rates, say, can appear when a surfer visits a rival financial company's site.

The distinction between such adware, which can report back to its creator with information about the computer user's surfing habits, so as to allow for supposedly more effective ad serving, and spyware, which similarly monitors surfing habits and serves up ads, is sometimes a hazy one, and lies at the heart of Gator's libel suit.

Gator maintains that its software differs from spyware in that people are clearly notified before they download it, and in that they do so in exchange for a service, like the peer-to-peer software.

Spyware, the company maintains, is surreptitiously installed and gives the unwitting computer user no benefit.

But critics of adware companies question how clearly such downloads are marked--PC users may suddenly be deluged with pop-ups and have no idea where they're coming from--and protest that companies like Gator are collecting information without sufficiently accounting for what they do with it.

The defendant in the Gator libel suit, PC Pitstop, offers software to cleanse computers of spyware and other undesirable code, and until signing a preliminary settlement with Gator on Sept. 30, vociferously targeted Gator's application.

In settling the suit, which alleged false advertising, unfair business practices, trade libel, defamation and tortious interference, PC Pitstop apparently removed several pages from its Web site that referred to Gator's application as spyware--along with many that went beyond that to urge action against Gator itself.

Executives for both companies declined to discuss settlement terms, citing a confidentiality agreement. But Gator advised a reporter to go to their new site and draw your own conclusions about what PC Pitstop did to comply with the settlement.

PC Pitstop used to publish pages on its Spyware Information Center titled Is Gator Spyware? the Gator Boycott List, and the Gator Quiz. Those pages are now gone. But as of Tuesday, they could still be found in the Google cache, which keeps copies of missing or unavailable Web pages for a limited time. (By Wednesday the cache of those pages had expired.)

PC Pitstop believes that Gator products degrade the quality of a user's PC experience, read the cached PC Pitstop page urging a boycott of companies advertising through Gator. This belief is based on our hands-on use of Gator products and experience with hundreds of systems in our forums....Although Gator Corporation likes to make a distinction and call their products 'adware,' other sources make no such distinction. Independent research has shown that they collect extensive information and have not clearly explained how the information is used once it reaches the Gator servers.

A Gator executive said the suit, filed in U.S. District Court for the Northern District of California, was part of a larger strategy to educate spyware-removers about the company's software--and to put an end to the practice of calling it spyware.

If we find anyone publicly calling us spyware, we correct it and take action if necessary, said Scott Eagle, Gator's senior vice president of marketing.

In addition to going on the offensive against detractors, Gator has spent significant time in court defending its practices against the charges of companies that run Web sites that Gator has targeted with its ads.

Gator in February settled litigation brought against it by the New York Post, The New York Times, Dow Jones and other media companies. The Washington Post, L.L. Bean and Extended Stay America have sued the company, and their consolidated lawsuit will be decided by the Judicial Panel on Multidistrict Litigation in Washington, D.C.

Meanwhile, the courts have smiled on a company that operates a similar ad network. Last month, WhenU survived a legal challenge brought against it by moving company U-Haul after WhenU served ads for U-Haul's competitors on top of U-Haul Web pages.

Eagle declined to comment on other specific spyware-busters, such as the New York City-based Enigma Software Group or InterMute, in Braintree, Mass. Those companies have advertised that they can rid computers of Gator--but their Web sites no longer mention the software. Eagle said he could not talk about ongoing actions.

Enigma Software Group could not be reached for comment. InterMute, which previously has spoken openly against Gator, declined to comment.

Companies like Gator are the Goliath that average computer users are up against in the war for online privacy, Ed English, CEO of InterMute, said last month in an interview with CNET News.com.

Gator said it would take on its critics on a case-by-case basis.

There are going to be detractor sites, Eagle said. What we can do is focus on education and getting the word out there. We have discussions on this topic whenever we need to.

For its part, PC Pitstop said that, whatever the terms of its settlement, it continued to target Gator's software on people's computers.

PC Pitstop detects a variety of situations that we would consider problems, including certain software that we didn't think was in the best interest of the end user, said Dave Methvin, chief technology officer for the Web-based start-up. We currently detect and recommend removal of Gator.

CNET News.com's Stefanie Olsen contributed to this report.

URL: ZDN