In looking over various merchant agreements, it is generally stated or implied that commissions will be paid on sales originating from the affiliate site. Despite the (wrong) finding in the WhenU case, there is an agreement between the merchant and the affiliate that is separate from that of the scumware distributer and the user. Under the operating agreements I've browsed, hijacked commissions should not the the affiliates problem.

I think it's time that affiliates hold merchants to the agreement. If it means merchants who coddle parasite operators have to pay out commissions twice, then so be it. If Ebates overwrites a link of mine and I can prove it,
the merchant is still responsible for paying a commission to my site as per the agreement.

For example, in Haiko's experience with Anne's link to the Staples site being hijacked, the Staples program states: "Commission rates will be paid to Affiliates based on the sales acquired through the Affiliate Site." The operating agreement says nothing about her commission being void if a parasite hijacks the link.

We need:

- A foolproof method of tracking clicks/sales.
- A good lawyer to force the merchants to pay up.

Obviously, the technical problem of tracking is huge but not impossible. When the merchants are held legally liable for making good the hijacked commissions, this problem will disappear.

Disclaimer: I am not an attorney, nor do I play one on the internet.