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  1. #1
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    I thought I would put this together as a starting point for those of you that are considering legal action against some of the ParasiteWare companies.

    The best type of claim to bring would be equitable claim known as the doctrine of unjust enrichment. Generally, one person cannot unjustly enrich himself at the expense of another.

    In our case assume a visitor sees something on your site, and they decide to purchase that product or service. Assume that they have a type of ParasiteWare installed that overwrites your affiliate links with those of the ParasiteWare Company. The ParasiteWare Company has been unjustly enriched at your expense. In other words the ParasiteWare company would have never made this sale, but for the existence of your site. This is actionable under this doctrine.

    This doctrine also gets around the problem that you have with copyright actions. That is the argument that ParasiteWare is infringing on your copyright because they are modifying your intellectual property. This isn’t a very good argument to make because the ParasiteWare Defendant has a very strong claim that “look you may be right there may be a copyright violation here, but your problem Mr. Plaintiff is that if there is a violation it is your site’s users that are violating your copyright not us.”

    Recovery

    Generally, there are two types of recovery you can seek with this cause:

    1. Monetary
    That is you sue the scum for your lost sales. The problem with this is you have to have proof, which more than likely means finding out which of your visitors tried to buy products and services from you, but because of the overwrite a scum got credit. The most practical way to prove this is to find some of your visitors that purchased something though your links, you didn’t get credit for it and you can confirm they have some type of ParasiteWare installed. Then it is a matter of subpoenaing whoever manages the affiliate program for those particular merchants to find out who got credit for the sales. It should be easy to see the practical limitation of seeking monetary damages. I doubt very many of us actually know who our visitors are.

    2. Injunctive relief
    That is you ask the court to order the scum to quit overwriting your links or modifying your site. The proof is much easier because all you have to do is prove that it will happen if someone tries to buy something off your site not that it actually happened. Of course the downside is that there won’t be any money available to pay your fees.

    Note: This is only a starting point and you should discuss this with your legal professional. The doctrine of unjust enrichment is a state specific cause of action so the rules will vary from state to state and the cause may not be available in your jurisdiction at all.

    What if they fix it
    That is what if the scum offers some type of pop-up box on your site asking the user if they want to use the scum’s links and not yours? Under this doctrine it would be impermissible because they are still using your site as a sales platform. In other words the sale would still not have occurred but for your efforts.

    [ 05-05-2002: Message edited by: malibber ]

  2. #2
    ABW Founder Haiko de Poel, Jr.'s Avatar
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    malibber,

    I am on this BIG TIME!

    Quoting myself from the merchants board:
    quote:
    If the merchants cognitively keep them as "D"uper Affiliates, they are just as responsible as WurldMedia for the losses.



    I warned them all about this sheet over a month ago, now there are 80,000,000 infected computers!!!!
    Someone must and will pay!

    Haiko

  3. #3
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    My step brother the DA running for Attorney General agrees with you Haiko:
    "I warned them all about this sheet over a month ago, now there are 80,000,000 infected computers!!!! Someone must and will pay!"

    He feels the merchants and the enabling networks will feel the brunt of the financal penalties with the principles of the parasite companies facing criminal actions for identity theft and conversion. The Charity front if bogus brings in additional federal action since all 80 million can be assumed to be donors through purchases.

  4. #4
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    Where's Ralph Nader stand in all this since thta guys loves consumer causes.

  5. #5
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    Ralph's trying to get his Corvair started in the woods of Oregon. Seems he drove into a pile of Spotted Owl guano and got stuck.

    Yo Mike, ask your step brother if I can file an official criminal complaint against Morpheus and boys grand theft, RICO, fraud, unlawful conversion, etc. in his jurisdiction even though I live in
    Sin City.

    If I can, I will file an official criminal compliant. He can publicize that said claim was filed and that he will be investigating
    and that if said complaint is true, he will be saving the world from terrorists and thieves and charities who support them.

    It may not be 100% true - but if the complaint is real, he can pretty much spin it anyway he desires...It will be MAJOR news and get his name on the bigstage bill.

    And we need his help. Let me know.

  6. #6
    2005 Linkshare Golden Link Award Winner  ecomcity's Avatar
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    He is looking into the RICO angle and regardless of which jurisdiction terminology -theft -fraud by conversion- identify theft etc. the amounts certainly surpass the criminal charge threshold.

  7. #7
    ABW Ambassador
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    When I read all the ParasiteWare threads I think it is so sad.

    Then aadcom.com contacts ME and my approach to these scum is as follows:

    Contact Yahoo! legal about the fact that they are using the Yahoo! image on their site and DEFACING it.

    I'll let you know what Yahoo! has to say.

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