In the issue of spyware and adware, there are divergent opinions on whether users are aware of the terms of the software and have actually agreed to them. On September 5, 2003, a judge granted the adware maker WhenU a summary judgment in a suit filed by U-Haul Corporation In his opinion, the judge wrote:
“The fact is that the computer user consented to this detour when the use downloaded WhenU’s computer software.”
Avi Naider, CEO of WhenU, testified in front of a United States Senate subcommittee on March 23, 2004:
“Regardless of the method of distribution, during the installation process, the consumer always receives a prior notice that SaveNow is part of the download.”
Underlying both of these statements is the assumption that most WhenU users are fully aware of the software and knowingly consent to installing it. PC Pitstop decided to explore through quantifiable objective research whether this assumption could be substantiated.
PC Pitstop runs a free and popular PC diagnostic web site. After running a quick five-minute diagnostic of their systems, users are presented with a detailed analysis and recommendations on how to improve system performance and stability. Beginning in March 2003, the tests showed the following questions to WhenU users after the tests had run, and before the test results were displayed.
The user’s response was logged in our database. The question was only presented once per computer tested, even if the computer was tested multiple times.
The survey was run from March 26, 2004 to March 31, 2004 and 519 WhenU respondents were queried. Our first finding is that Gator/GAIN/Claria is over 3 times as large as WhenU in terms of installed base at PC Pitstop.
We chose AVG because it is free and it is distributed via the Internet, as are Claria and WhenU products. Also, AVG runs in the background, making its presence on the user’s system similar to that of software from Claria and WhenU.
Almost by definition, people cannot accept a click-through license agreement if they are unaware that the software has been installed. We believe that this is the largest problem with this class of software and must be addressed by the US Federal Trade Commission. Regulations should standardize and simplify the way that consumers are notified of software license terms, and the installation process should allow the consumer to clearly acknowledge the installation of software and to easily determine when the software was installed.