October 27, 2003
Volume 2, Issue 4
Claria Distinguishes Adware from "Spyware"
See You Later, Anti-Gators
DCIA Member Claria Corporation (formerly The Gator Corporation) 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 anti-spyware company has settled with Gator and pulled Web pages critical of the company, its practices and its software. And other adware foes are getting the message.
Gator often distributes its application by bundling it with popular free software like KaZaA and other peer-to-peer (P2P) programs. When downloaded, Gator's application serves pop-up and pop-under ads to people while they're surfing the Internet 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 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 more effective ad serving, and "spyware," lies at the heart of Gator's libel suit.
Gator software differs from "spyware" in that people are clearly notified before they download it, and they do so in exchange for a service, like P2P software.
"Spyware" is surreptitiously installed and gives the unwitting computer user no benefit.
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.
"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."
Report from CEO Marty Lafferty
 I'd like to personally thank leaders of the music industry and our Charter Members for their good faith efforts in beginning to explore, on a confidential basis, constructive business solutions to the current copyright infringement crisis.
While we can't reveal specifics, and would not even expect participants to publicly acknowledge their involvement in such discussions at this early stage, we feel that it's important to express our gratitude.
The DCIA strongly encourages continuation of these efforts until we fully turn the corner and start to make real progress on this front.
This week, three critical areas for DCIA involvement have become clearer, thanks to generous investments of time, valuable contributions of ideas, and mutual demonstrations of good will, by those engaged in these preliminary discussions.
These three areas, in fact, may come to represent key priorities for our organization, commencing in the very near term, and extending into the longer term, many months from now.
First, at the outset of any implementation of music licensing from major labels into P2P distribution, the DCIA will need to help balance and optimize two basic goals. From the rights holders' side, an overriding objective will be to rapidly convert file-sharing applications into fully authorized content environments. From the P2P software companies' side, an overriding objective will be to maintain commercially attractive traffic levels during this conversion process.
An example of a focal issue that will have to be agreed upon in this regard, depending upon its impact on consumer behavior, is the relative number of licensed music files that need to appear at the top of a P2P search result before any unknown files appear.
This can be addressed by a combination of DCIA sponsored business standards-and-practices and DCIA supported performance benchmarks for percentages of label-seeded versus consumer-introduced content over set periods of time.
Second, as cooperation builds between content and software companies, with licensed music displacing unlicensed music, during the mid-term of this conversion process, the DCIA will need to help participating firms adopt controls acceptable to artists and fans that will realize the full potential of file-sharing for both sides in terms of convenience, choice, quality, and value.
An example of a key issue that will have to be agreed upon in this regard is filtering out of P2P traffic certain consumer-introduced music content that for quality or other reasons the respective performing artists do not want to have distributed online.
The DCIA can facilitate a working group to create the process for artists and/or other rights holders to control their works in P2P distribution. This will likely include song identification and related software-based procedures for either capturing for compensation or blocking distribution of such consumer-introduced versions (CD rip, original recording, mash-up, etc.) when one or more official licensed versions have been made available.
And third, as we embark towards a longer term solution for this new industry, and we understand that the most promising of these currently seems to present almost as much complexity as potential benefit, the DCIA's ability to involve the third major group necessary to industry development will be challenged.
As envisioned at this admittedly very early stage, broadband ISPs will need to be engaged to some degree in order to accomplish this. The fact is that it is hard to imagine implementing POP-based router or similarly very accurate P2P-protocol traffic-monitoring system(s), independent of DRM or specific P2P software applications, which would not have to include ISPs.
It is here that the DCIA may also need to turn to Congress for help with the solution, either directly or indirectly, as the DCIA continues to bring forth various models for discussion, evaluation, and implementation.
As with certain other leased usages of RBOC and MSO facilities, these could also involve introducing one or more third-parties to conduct P2P traffic management functions.
Such approaches could mitigate the need to ask major ISPs to violate principles regarding knowledge and control of content that remain important to them, and avoid having to resort to an imposition of statutory rates.
While all of this proceeds on the business side, we will also need to remain just as vigilant on the side of consumer rights. These range from equitable treatment of consumer-seeded music tracks, the existence of which is as essential to making P2P the world's superior medium for music distribution as is having label-seeded tracks, to the separation of personal identification data from file download tracking data to protect consumer privacy.
We remain focused on our quarterly goal for DCIA Platform, Operations, and Content Groups to coalesce around one or more optimal business models, hopefully, by the time of our Winter Quarterly General Meeting.
As noted last week, if you are a music rights holder, whether or not you are in the process of actively considering DCIA Members hip, please get in touch with me directly at 888-864-DCIA or marty@dcia.info to express your ideas for the P2P business model currently in development.
E-Mail Tax Issue Approaches Deadline
Stop E-Mail Taxes
We've been asked by Congressional staff members to pass along the following important and time-sensitive message regarding a possible imposition of e-mail taxes.
On November 1, the current Internet tax moratorium will expire. However, Bill S. 150, the Internet Tax Non-Discrimination Act, has passed both the House and the Senate Commerce Committee. A YES vote on this bill can be expected to result in a permanent ban on Internet access taxes and e-mail taxes.
Parties wishing to support passage are encouraged to place a phone call to their Senators at 202-224-3121 and urge them to vote YES on S. 150. Interested institutions are likewise asked to encourage their employees, customers, and other constituents also to take such action.
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