You read it here first—DirectRevenue is agreeing to ground-breaking settlement terms in bringing the class action brought against it (March 2005) to closure.  The embattled spyware/adware company is agreeing to, among other things, the below terms in a settlement with class representative/plaintiff Stephen Sotelo in Cook County, Illinois Circuit Court:

1) Destruction of personally identifiable information “to the extent that DirectRevenue possesses any such data, said data will be destroyed.”

2) Giving equal prominence to 2 choices when displaying the End User License Agreement to consumers considering installing the software:

“I have read and accept the agreement” or “I do not accept the terms of the agreement” (EULA)

The “accept” option will NOT be the default option.

3) In addition to providing computer operators with its EULA, it will “disclose, separate and apart from the EULA” that users will receive ads while online along with a description of the ads; its collection of information about Web sites visited by users; its intent to provide adult ad content ads if users visit adult sites; any bundling—the fact that its software will also be included with any ad supported software being downloaded.

4) Not installing its software using Microsoft ActiveX or any other security exploits or in any way that does not require users’ consent.

5) Un-installation information to be displayed in the EULA and supported with an array of consumer resources such as a link at DirectRevenue.com as well as telephone and e-mail assistance offered to consumers (including special help for the visually impaired) wishing to rid their machine of the software.  All messaging will be detailed in how consumers can remove DirectRevenue’s software.

6) Not using sites aimed at children as distribution partners.

7) Not using the word “free” in banner ads describing the program being promoted (by the distribution partner such as a screen saver or video game) unless the ad also discloses that the program is ad-supported.

8) DirectRevenue ads will display a “?” button on the title bar or text link indicating further information is available to consumers. “This information will include an explanation of why the user is receiving the ad; the identity of the consumer application the user downloaded with the software; an instruction that the user can uninstall the software using Windows ‘Add/Remove Programs’” (to be found “under the exact same name used in branding the ads").  The company will limit its “name changes” used on ads (i.e. Best Offers) to once per every two years.

9) No re-installation unless the user performs a re-install.

10) No deletion of other software tools or modification of the consumer’s security settings will be performed.

11) Limitation of advertisements served to 10 or less (per computer per 24 hour period).

12) Purchasing sponsored links, if Google is willing to sell such links, that provide links to help consumers remove DirectRevenue software. 

Unfortunately, the settlement’s chief weak point is a critical one: affiliate control and enforcement of rules.  The company agrees to hold its affiliates responsible for terms agreed to as part of this settlement but makes no warranties beyond its commitment to “closely police its distributors.” It promises to “take appropriate action based on the circumstances of the violation, potentially including termination of the distributor.” The use of sub-affiliates is also not prohibited.

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EDITOR’S NOTE
3:25 PM CT
3-13-06

In a note to me this afternoon, David Fish (of The Collins Law Firm, P.C.) wished to make something very clear regarding DirectRevenue’s control over distributors.  That being…

“One of the main reasons that we agreed to the settlement relates to the ability of our law firm, the Class of Illinois residents, and a Federal court to hold DirectRevenue accountable for any misconduct that may have been aided by one of its distributors.”

In the same email Mr. Fish said, “The bottom line is that if there is a violation the terms of the settlement, we don’t care whether DirectRevenue is going to try to ‘pass the buck.’ We will seek to have DirectRevenue held accountable… If DirectRevenue (or its distributors) violate the settlement agreement, we have the right to ask a Federal judge to hold DirectRevenue in contempt of court for violating a court order.  This is why we insisted on DirectRevenue agreeing to ‘injunctive relief.’”