One word: adware. Eliot and Ben are two of the most vocal critics of adware which for all intents and purposes is a becoming a public policy issue. When Eliot Spitzer filed suit against adware vendor Direct Revenue, he crossed the line between seeking a genuine remedy for the consumer against adware and shameless self-promotion for his aspirations to become governor of New York. The same is true of Ben Edelman.
Adware is the software that pops up advertisements that you get when you surf the Internet. To truly understand the legal dispute, consumers have to understand that adware vendors such as Direct Revenue in many instances gained the direct consent of consumers when they ended up on their desktops. There is nothing illegal when a consumer agrees to advertisement in return for free software. Just go back to economics 101, the first lesson is TINSTAAFL: There is no such thing as a free lunch. Many consumers forget that when they download software programs such as Kazaa, the writers of Kazaa also have to make money for their work. Direct Revenue is the business model behind free software and has provided consumers with a way of sharing files by enabling software writers to stay in business.
What I find truly amazing is that Spitzer has sued Direct Revenue when in fact there is no legal basis for the suit and Edelman has fed the fire by profiting from consulting fees to consumer advocate groups. First, there is no law against adware. And anyone who is familiar with the law knows that laws cannot be applied ex post facto, which means actions that were legal at the time they were committed cannot be retroactively punished. So, in this sense, Spitzer is really going out on a limb. I think it would have been much more reasonable to demand some sort of settlement in this case.
Second, I find truly disconcerting is that amidst the controversy, Ben Edelman, a law student at Harvard, has been fanning the fires by feeding sensational information to the press. Blodgett writes about the news in a recent post. I agree that click fraud is a serious issue. In fact, it is getting more and more serious. But rather that fanning the fires, what is Edelman doing about it? It would be more constructive if Ben actually began looking at the issue and presented a solution to the problem, because as far as I can recall, the issue that Ben brought up several years ago has gotten worse and not better. At the same time, Edelman has been surrepticiously collecting consulting fees and beer money from being a mouth piece of false righteousness, which he does not disclose. Ben, don't be a hypocrite. Be part of the solution, not the problem.