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  1. #1
    ABW Ambassador
    Join Date
    January 17th, 2005
    Hi all,

    First, I'd rather this be set up as a topic in parasiteware and hopefuly it'll get moved to there but if not, Oh well.

    I like to use this area for people who have discussed this issue with attourneys and or legal athorities (FTC, FBI or others) and be able to discuss what their comments were and figure out how to best get a legal proceeding going that can possibly work in our favor. New parasites are popping up all over the place and it likely wont be long before the affiliate advertising industry is in shambles (as if it isn't already).

    I've had very minor discussions with government officials and it seems their first impression is that it's a copyright issue (that was the feeling I got that they are waiting on results from gator lawsuits, etc) but they are looking into the issue further. If gator was to lose it's lawsuit, would that have an impact on companies such as ebates? I'm not sure I see the connection between popups and real advertising vs what they were doing - diliberate diversion without any notification or clue that is was even happening.

    I talked with an attorney yesterday who is fairly technical and aware of the issue on a medium level. He said he didn't think it was a copyright issue and that a case likely be best served under unfair business practice and with ? (I forget the specific name but something like) interference with business process for the intent of profit. He mentioned non compete as well especially in regards to ebates with no notification (however that was after a brief review of their TOS and said it would take much more investigation).

    He also felt that pursuing merchants would be a waste of time. As unbelieveable as that was to me, he basically said that the merchant thrugh there signup with the parasite gave them permission to steal from them as well as affiliates. The model of going into a store and being able to specify were profits go is acceptable "if the merchant agreed to allow it" which he felt they did. This may shift focus back of legal actions towards the networks for not practicing "due diligence" and lack of "full disclosure".

    What have you been told? Is there a common ground somewhere?

    I'd love to be able to find someone to take this on a contingency basis but even at that, the cost with expert witnesses and everything else is still going to be substantial. Then when you add in the fact that most of these companies are setup as offshore companies and the ability to get any real rewards out of them pursuing a legal action unlikely.

    With that said,
    We're likely either going to have to
    1) Pursue a legal action "to set a precedent" and forget about getting any funds from it.
    2) Wait and see what happens and impact existing lawsuits have. Even though I'm not sure they will have an impact of diversions.
    3) Take some other action or do nothing.

    Any feedback on these topics to help us better position ourselves for action would be appreciated.

  2. #2
    ABW Ambassador
    Join Date
    January 17th, 2005
    I would think that the laws that apply to standard sales commissions would be applicable to internet sales. When a salesman gets stiffed for commissions at the local car dealer, what laws does he use to sue the car dealer?

    Protophoto - Short Stories

  3. #3
    Affiliate Manager's Avatar
    Join Date
    January 18th, 2005
    I was recently speaking with a relative of mine who is a lawyer and a judge about Parasites. Most specifically we were discussing Whenu but I also had mentioned Ebates during the coversation.

    The responses I got back were:

    Yes, this is definitely a copyright and/or trademark issue (in the case of Whenu) when URLs are stored in databases with out permission.

    Yes, this is also an unfair business practice as mentioned above.

    Here's the rub though: there's not a lot that can be done that will immediately affect the scenario. Individually sites can have an injunction placed on these companies but it needs to be done at a national/federal level. Doing it at a state level is wothless and time consuming. the injunction only solves a problem for one person not for the industry as a whole. Not to mention that the legal fees to achieve this may be out of the reach of a lot of those affected.

    Really, what needs to be done is to lobby the congress people at a state and national level. talk to your local congress people about how you or your company is losing money to an out of state business due to unfair business practices and then do the same with your natoinal congress people.

    If enough of us start to make this a well known issue then perhaps we'll get the attention that we need in order to actually solve this problem.

    I know this sounds like about the slowest way to actually solve this problem but I really think that's how it will actually happen.

    I'm going to draft a couple of letters to the congress people in my area. After I've done so, I'll share them with you all here. Perhaps, we should consider a petition as well???

    I don't know if this is good news, bad news or neither. It's what I've found and how I'm going to start approaching the topic.

    Matt Ranta
    netProfits Affiliate Program

  4. #4
    Join Date
    January 17th, 2005
    thanks, matt!

  5. #5
    Full Member
    Join Date
    January 17th, 2005
    How about if I take on an attorney on a % of winnings basis, and file suit against the parasite companies, with maybe the networks as co-defendants?

    If I show a drop off in revenues, and can demonstrate the illegal swap going on, intent and damage are now proven.

    I'm surprised this hasn't happened already.

    Anybody have any good reasons I *shouldn't* be doing this?

    Mike Jacobs

    WebMogul - Online Marketing that Works

  6. #6
    Join Date
    January 17th, 2005
    I'm a law student, hoping to focus on IT/internet law. We're studying this particular issue in one of our classes right now.

    One of the problems we're seeing is that traditional "meat space" law doesn't exactly fit the situations coming up in "web space", but that the "meat space" law can be helpful in some situations.

    Here, you've got at least one major hurdle to overcome - jurisdiction. To pursue the issue in federal courts, where the verdict would have the most impact against the parasites, the court has to be able to say that it would be constitutionally OK to bring the parasite/defendant into that court. Establishing jurisdiction is one of the big differences between "meat space" and "web space" cases, and it's usually where a "web space" claim will fail.

    If you can overcome the jurisdiction hurdle, though, I'd look to the TOS/affiliate agreements that the companies use to regulate their relationships with commissioned affiliates. Those agreements could be construed as contracts. In addition to the 'interference with business relationship' claim (tort), there may also be a breach of the implied duty of good faith and fair dealing (contract) in that the companies allow (or at least don't prohibit) the parasites from 'hijacking' the commissions.

    just a thought.

  7. #7
    ABW Ambassador
    Join Date
    January 17th, 2005
    I'd look to the TOS/affiliate agreements that the companies use to regulate their relationships with commissioned affiliates. Those agreements could be construed as contracts. In addition to the 'interference with business relationship' claim (tort), there may also be a breach of the implied duty of good faith and fair dealing (contract) in that the companies allow (or at least don't prohibit) the parasites from 'hijacking' the commissions.

    Thank you, Fosterchi.

    Any of you out there catch somebody overwriting your links? Make a purchase. KWIM?


    Hell wasn't big enough so I had to come back.

  8. #8
    Join Date
    January 17th, 2005
    Does anyone knows if any of these parasieware has a patent over the "technology"?

    The reason I'm asking is because I know a startup that has filed patent applications regarding this "technology" a couple of years ago (claims are still pending). If they get patent for presenting offers on the users desktops, it could be a start for us...(this startup does not develop parasiteware)

  9. #9
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
    Join Date
    January 18th, 2005
    St Clair Shores MI.
    I have faith in the legal sharks. They will find a way to drag the BHO parasitic buggers into count and pass some of the judgements to the merchants and networks who enable them to steal. Stealing cookies and trading them in for cash requires a "cookie" fence. Is this the role of the networks ...cookie fences..for the thieves?

    Charlie ...

    If they won't adopt and feed a bird ..flip them one! BBQ some Gator and remember to flush WhenU..

  10. #10
    ABW Ambassador
    Join Date
    January 17th, 2005
    I have faith in the legal sharks

    What? - LOL

    Unfortunately, I don't agree on this one.

    The legal sharks don't have vested interest and I'm gussing that none of them will touch this kind of suit on a contingency basis. If they would, I'm sure they would have already actively pursued this board for people who would be willing to participate and provide evidence. Since that hasn't happened, that leaves us to the companies who have the bucks and power to sue them.... Not a single one of them has followed up with a trial that has lead to a precedent! Every one of them has sold out to undisclosed sums of money and agreements that their site will not be infringed on going forward. Will tiger direct be any different? When the money is actually offered as a settlement we'll have to see how much ethics tiger really has regarding parasites (and I'm not bad mouthing tiger at all but I'll bet you won't hear..... We won't settle ).

    Whats left? Maybe when merchants wake up and figure out that sueing them is just about a sure fire way to result in a big cash settlement, you'll see more and more suing and after a while, it's not going to be profitable for these guys to continue.

    My own opinion and advice to merchants is to jump on the gravy train with tiger direct so you can get your cut and get "protection" - " without having to pay them for it" from future infrengements.....

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