Judge rules in class action against Direct Revenue

Judge rules in class action against Direct Revenue

Summary: I've been following the lawsuit filed against Direct Revenue in April. (The PDF document of the complaint can be seen here.

SHARE:
TOPICS: Legal
13

I've been following the lawsuit filed against Direct Revenue in April. (The PDF document of the complaint can be seen here.)  Excerpt:  "A class action lawsuit claims that the Defendants are involved in installing “spyware” on millions of computers without the computer owners’ consent, utilizing it to track the Internet browsing habits of the owners and then send them intrusive targeted “pop-up” ads."

In June, Direct Revenue filed a motion to dismiss blogged here.  Additional court documents can be read here and here.  Direct Revenue argued that the court ought to dismiss the case because Plaintiffs (i.e., the users) must have seen the End User License Agreement (EULA) and clicked through to agree to it, thus effectively telling a court of law that its software is always installed with the user’s full knowledge and consent, despite numerous statements indicating otherwise by users seeking help to remove it.

The judge, in fact, evidently did not agree.  I heard from David Fish today about the decision. 

The judge is permitting our lawsuit claims for trespass, negligence, consumer fraud, and computer tampering to go forward against DirectRevenue and BetterInternet.  (but not DirectRevenue's holding company since it is allegedly just a holding company).   The judge also is permitting our trespass claim to go forward against two advertisers--- one of which is an "ad-server" and the other is one whose pop-up ads were sent via DirectRevenue.

A few interesting comments from the judge: "many companies and computer users consider pop-up advertisements and Spyware an Internet scourge" (p. 17) and that the allegations in the lawsuit "reflect the frustration of many computer users" (p. 18).

In ruling that the lawsuit could proceed, the court recognized that trespass to personal property “has reemerged as a cause of action in Internet advertising” (p. 16).  The court ruled that a trespass claim “may be asserted by an individual computer user who alleges unauthorized electronic contact with his computer system that causes harm, such as Spyware” (p. 16)

In response to an argument that individual advertisements can be easily closed, so they cannot cause a legal injury, the court ruled that this “ignores the reality of computer and Internet use, and plaintiff’s allegation that part of the injury is the cumulative harm caused by the volume and frequency of the advertisements.  The fact that a computer user has the ability to close each pop-up advertisement as it appears does not necessarily mitigate the damages alleged by plaintiff, which include wasted time, computer security breaches, lost productivity, and additional burdens on the computer’s memory and display capabilities.”  (p. 21). 

The court document can be read in full at http://www.spywarewarrior.com/SCAN2854_000.pdf

This is certainly good news for computer users.  It will be most interesting to see how the lawsuit proceeds from here.  Stay tuned.

Topic: Legal

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

13 comments
Log in or register to join the discussion
  • It's about time . . .

    . . . that the courts were used to put an end to this. This is company (and others like it) is guilty of criminal trespass, resulting in everything from annoyance up to identity theft. Real harm is inflicted on real people, and hiding behind some click-through EULA filled with unintelligible language is not a vaild defense.

    Just my $0.02, but it's been a long time coming.

    Regards,
    Jon
    JonathonDoe
  • Hate to say it

    THANK GOD FOR LAWSUITS! I feel queezy . . .
    Roger Ramjet
  • Whahoo! Thank God ....

    ..somebody finally recognizes the rights of the users. It will be interesting to see what litigious channels this opens up for internet consumers/users. How long before class action lawsuits are filed against virus writers?
    jtnixon
  • Wow, a Judge with common sense!

    Way to go!!!
    No_Ax_to_Grind
    • No, a Judge who has had Spyware!

      He knows what it's like, apparantly.
      BitTwiddler
      • I'd bet you are spot on with this one.

        It doesn't take a user very long to figure out spyware is a tresspass of our machines.
        No_Ax_to_Grind
  • Direct Revenue--Hurrah

    All week I've been telling friends this should be a legal matter.

    How does one become a part of the class action suit?

    Karen
    karen97
  • Direct Revenue

    Glad to see lawsuit can go forward. I never agreed to receive their stuff. Aurora/ABI/Nail.exe first began to pop up when I went to Microsoft's website for recent info on Service Pack 2. And it seems to interfere with Norton Anti-Virus. I'm still struggling to get rid of it.
    mariato@...
    • aurora removal

      go to http://www.avast.com and download Avast Antivirus. you'll need to register to get a home release key emailed to you. after updating the definitions, schedule a boot time scan and restart your computer. Aurora will be taken out with great prejudice.

      follow up with Ad-Aware SE and Spybot S&D scans, and a quick run through with Hijack This to make sure it's completely eradicated.

      and get rid of Norton. Avast is smaller, provides the same level of resident protection, and picks up all the viruses norton does, as well as the major adwares. exquisite program.

      Kent Roggemann
      PC Technician
      Computer Connection / U.P. Logon
      yakwhacker
  • Spyware

    I also think that it is was a long time coming that these advertising companies be held responsible for invading and destroying your privacy as well as damaging ones computer.

    But I also think that it is equally important that we look at the companies that are supporting a company like Direct Revenue and hold them responsible as well. The company that immediately comes to mind is Net Zero. They advertise that they do not allow spam or spyware through their filters yet use very intrusive popups via the ABI Network.

    One has to calculate the amount of hours and monies that are spent in trying to remove these trojans.
    MartyS@...
  • aurora removal instructions

    found aurora removal instructions on spyware removal site: http://www.spyware-removal-guideline.com/aurora-removal
    parpes
  • RE: Judge rules in class action against Direct Revenue

    http://www.analogstereo.com/lamborghini_jalpa_owners_manual.htm
    jj_forums
  • RE: Judge rules in class action against Direct Revenue

    FBI LAUNCHES SEARCH FOR ALLEN STANFORD'S FELLOW
    FRAUDSTERS

    Now that Elandia founder and Ponzi schemer Allen
    Stanford is in the hands of the FBI, the Feds are looking
    for his network of swindlers including Sydney D. "Trip"
    Camper III. According to SEC filings, Trip Camper was
    forced to resign from Elandia by Stanford. Unfortunately,
    the Ahkoy family business, Datec, fell victim to investment
    fraud by Elandia's Allen Stanford and Trip Camper. Before
    the bad news could spread, Trip Camper found a new
    victim in the form of a private Los Angeles company with
    aspirations to go public. With the help of his new partner
    in crime, Ed Berkhof, Trip Camper formed a "shell" holding
    company and ruined this honest company as he did Datec,
    the Ahkoy family business. Since becoming victims of
    Elandia fraud, the Ahkoy Family is suing Elandia in Pacific
    and Florida courts. Meanwhile, Trip Camper remains at
    large. Recent articles reveal that "FMC Telecom has
    acquired SMS..." and lists Ed Berkhof as the appointed
    COO. FMC Telecom founder Frank Cassidy is either Ed
    Berkhof's NEW partner in crime or he has unfortunately
    fallen victim to investment fraud orchestrated by Ed
    Berkhof.

    Investors Beware! The FBI is looking to prosecute thieves
    like Allen Stanford, Bernie Madoff, Trip Camper and Ed
    Berkhof who are leaving a path of destruction and a wake
    of fallen victims of fraud. Don't be a victim of investment
    fraud.

    View SEC links

    http://www.secinfo.com/d14D5a.v6Q98.c.htm
    http://www.secinfo.com/d14D5a.v6Q98.d.htm
    sirgeraldbirkin