A thought suddenly struck me yesterday when I was reading the press release for Microsoft's new Windows AntiSpyware product. If Microsoft's product is really going to clean up spyware effectively, how will it do so without violating the licensing agreement of Claria's Gator and other spyware/adware?

The we're-adware-not-spyware crowd like Claria are of course great supporters of the sanctity of end user license agreements, since the supposed acceptance of their EULAs by unwitting downloaders provides the basis for the claim that their adware is installed with "customer" consent. And an increasingly common provision in the adware EULAs is a prohibition against using third party software to remove the program. As spyware researcher Ben Edelman reported in November,, Claria's EULA only allows removal of Gator and related software through a cumbersome process using the Windows Add/Remove Programs menu. Removing it through the use of spyware detection programs, presumably including Microsoft's new offering, is a violation of the EULA.

And the Claria/Gator EULA isn't the only one that says this. The license agreement on DirectRevenue's website states that those who have been inflicted with it "agree that you will not initiate, permit, authorize or assist any third party or application to remove the Software from your computer, or disrupt its operation or the operation of any other user." DirectRevenue's EULA also claims the right to reinstall itself if any third party software removes it. (Among the myriad spyware-related lawsuits going on, by the way, DirectRevenue is being sued by fellow adware vendor Avenue Media over the DirectRevenue software's penchant for deleting other spyware from users' systems.)

So it seemed to me that this poses something of a quandary for Microsoft. After all, the software EULA as we know it today is basically a Microsoft invention, and no other company has been as big a supporter of UCITA and other legal efforts to make sneakwrap licenses completely binding. So Microsoft isn't going to want to go around violating any other company's EULA, not even those of companies of whom they might not completely approve.

On the other hand, an anti-spyware program that doesn't detect and remove things like Gator would certainly not be very useful. And, from the early reports I've seen about the Windows AntiSpyware beta, it does indeed detect and remove all the major threats. So does this mean Microsoft feels it can ignore what the Gator and other EULAs say? I asked Microsoft that question.

"Microsoft AntiSpyware enables customers to control what software installs and runs on their machines and Microsoft respects the end user license agreements for any third party products," a Microsoft spokesperson told me. "The Microsoft Windows AntiSpyware beta end user license agreement, which all users accept as part of the installation process, clearly indicates that the software will only remove or disable 'potentially unwanted software' as users instruct it, and advises them to read the license agreements for other software before authorizing removal."

For reference, the Microsoft spokesperson pointed out the relevant section of the Windows AntiSpyware beta EULA:

POTENTIALLY UNWANTED SOFTWARE. The software will search your computer for "spyware," "adware" and other potentially unwanted software ("Potentially Unwanted Software"). If it finds Potentially Unwanted Software, the software will ask you if you want to ignore, disable (quarantine) or remove it. The software will only remove or disable Potentially Unwanted Software as you instruct it. Removing or disabling the Potentially Unwanted Software may cause other software on your computer to stop working, and it may cause you to breach a license to use other software on your computer, if the other software installed the Potentially Unwanted Software on your computer as a condition of your use of the other software. You should read the license agreements for other software before authorizing the removal of any Potentially Unwanted Software. By using this software, it is possible that you will also remove or disable software that is not Potentially Unwanted Software. You are solely responsible for selecting which Potentially Unwanted Software the software removes or disables.

Silly me - I should have guessed. Of course, Microsoft isn't violating anyone else's EULA. It's you, the Windows AntiSpyware customer, who is solely responsible for violating your solemn contractual agreement with Claria, DirectRevenue, or whomever. You have a solemn contractual agreement with Microsoft that says so.

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