Several weeks after Gator Corp filed an action in defamation against PC Pitstop, a prominent anti-spyware software provider, the parties settled out of court. Gator alleged that the defendant misrepresented their advertising plugin software for Internet Explorer as a form of malicious spyware. Instead, Gator claims that its software is "adware", and PC Pitstop was accused of engaging in unfair business practices and trade libel, among other things.

This comes despite the near-universal view among IT professionals that the Gator software exhibits many of the same characteristics as spyware applications, and its general perception by the internet community as an intrusive and insidious violation of privacy:

Part of PC Pitstop's recent settlement required them to remove all defamatory content from is website. However, intrepid readers will note that the pages are still cached by Google.

At the risk of litigation, Gator's distinction between such "adware" and "spyware" doesn't appear justifiable. They base their distinction on two claims:

1) The former (their software) offers end users a benefit, whereas spyware does not confer any other benefits than its malicious collection of data; and

2) Their software is, unlike spyware, only installed with the user's consent.

However, both silently report web surfing habits and all other manner of user information back to a central database, and often utilise identical technological means of information gathering and reporting.

Frankly, I can't see why PC Pitstop would choose to settle in a case founded on such unsupportable grounds. I see three main counter-arguments to Gator's claims. Firstly, spyware is installed in a very similar manner to adware. Spyware typically arrives in the form of a browser script check window, in which the user is asked whether they wish to install a script signed by . The inexperienced user will unwittingly agree. In a similar fashion, adware is often installed from within the browser (sometimes without consent), and may also come bundled with popular software applications in exchange for remuneration for its developers. Again, no warning is displayed warning potential users just how intrusive the software will be, nor is the privacy policy readily available in most cases.

A further similarity lies in uninstallation: both spyware and adware are very resistant to removal, and embed themselves deeply within a user's system; this is what prompted companies like the defendant to develop software to ease the process.

With regard to the plaintiff's claim that adware is 'useful' (as opposed to spyware), dictum of a US Court in U-Haul v WhenU seems to suggest that intrusive advertisements are far from useful to end users. Indeed, common experience dictates that pop-up and pop-under advertising is one of the most vilified pitfalls of internet usage today - especially the insidious persistent advertising employed by adware 'utilities'. Studies suggest pop-up advertisements rank among the top five computer annoyances, and I would be inclined to agree.

A far more accurate definition of spyware would be along the lines of the following, as found on outspoken security expert Steve Gibson's site:

Hopefully the defendants in future libel cases of this type will not give in to the bullying of marketers desperate to profit even as their advertising medium approaches extinction. In the interim between being inundated by even more invasive violations of digital privacy and a judicial determination as to their legality, I would recommend that users take the liberty of using a popup-stopper or ad-aware application to prevent and disinfect spyware/adware, which are arguably the largest threats to privacy online after viruses and worms.