Defining adware

Adware is software, installed with some minimal level of user consent, which monitors Internet usage in order to display ads from third parties. These may be distinguished from more malicious programs, “spyware,” which are installed exclusively without user consent, either by drive-by downloads or browser hijacking. However, some third-party developers and distributors may bundle adware in drive-by download packages.
This series will focus on the two companies which are the most prominent in developing adware: Claria Corp. (“Claria”) and (“WhenU”). Claria, formerly known as The Gator Corp., distributes an adware program called GAIN and sells advertising on the GAIN Network. WhenU’s adware program is SaveNow. WhenU and Claria have been the most successful at attracting litigation from web site publishers and trademark owners.1
Claria and WhenU distribute adware by offering Internet users a quid pro quo. In exchange for occasionally viewing pop-up ads, consumers get free software that would otherwise cost about $30. Claria offers utilities which allow users to securely store passwords, search the web from a desktop toolbar, receive weather forecasts, manage a calendar and sync a personal computer clock with an atomic clock. WhenU offers a similar array of utilities. In addition, Claria and WhenU will pay third-party software companies for distributing GAIN or SaveNow bundled with other free software. Many internet users find adware installed on their systems as a result of installing peer-to-peer programs. Claria relies heavily on its bundling agreement with Shaman Networks’ KaZaA Media Desktop in order to attract new users.
Users can install GAIN and SaveNow much more easily than they can remove these programs. When installed as a component as other programs, neither GAIN nor SaveNow appear in the Windows “Add/Remove Program” feature. Instead, the ad server is installed as a component of its host application. In order to be able to remove these programs users must be aware of which application is sponsored by the adware. The adware programs are intentionally difficult to uninstall. In order to fully remove its software from a computer, Claria requires affirmative consent, so as to protect users from “unintentional, unauthorized or automated uninstallation of your GAIN Publishing software.”