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This is deliberate and deceptive and has to be illegal, at the very least they should be liable in a civil case.
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You would think so no? But that hasn't seemed to be the case necessarily. It would seem that laws and rules that apply to offline commerce don't necessarily carry over onto the Internet. Or at least law enforcement agencies feel they need separate laws. When I found WhenU popping on my own shopping cart back in early 2001 (I think it was), I immediately picked up the phone and called the CyberCrimes division of my AGs office. They didn't like it, but felt there was no existing laws for them to do anything. They were waiting for the laws.
There have been several lawsuits over the years now. The lawsuits approached it from several different legal avenues. Many cases were settled. The cases that didn't settle have had mixed results going both ways. There hasn't been any clear cut legal precedent set at this time.
Several states have since enacted antispyware legislation. What is covered in these laws varies from state to state. The first state to pass such a law was Utah. It addressed true spyware (i.e. collecting PPI and things like credit card/banking information), but it also tried to address the commerce end of the adware problem by basically saying they could have their software pop on someone else's web site on computers in UT. When the law was signed, affiliates in mainstream were overjoyed. They need the other site to pop on, so if they can't do that then problem solved! Or at least to a large extent. WhenU immediately sued the State of UT, the governor of UT and whoever else saying the law violated their Constitutional rights. They said it violated their...get this...First Admendment Rights. And well they won. UT revised the bill removing that clause from the bill. The law is a strange place at times.
Lawsuits are a sticky wicket. Especially when there is not clear cut law in place. I will say from my own discussions with attorneys that class actions are not necessarily easy suits to bring forth. IANAL, but from my discussions with attorneys their opinion the best possible winnable case from the affiliate's perspective was not against the adware company and it was civil in nature. I've actually been involved in more than one attempt at a class action. At the end of the day, when it came down to the knuckle knocking as to what is involved (with such issues as disclosure by both parties) and
who the best case would be against (sponsor/merchants), affiliates were not willing to follow through. That's all just my own personal experience though. ;)