Sunbelt ruffles spyware feathers

"We get about five to 10 appeals a month," said Sam Curry, a vice-president at CA, which sells the eTrust PestPatrol anti-spyware tool. PestPatrol also detects SpyMon, but CA hasn't had any notice from RetroCoder, Curry said. "The computer user has the right to know the keystroke logger is there," he said.

Purveyors of spyware and adware have also been the target of numerous lawsuits. Symantec, for example, filed suit in June against a New York Internet company for the right to detect its toolbars as adware. The Federal Trade Commission also has gone to court in actions against alleged spyware peddlers.

There is a great deal wrong with RetroCoder's charges, said Charles Kennedy, an attorney at Morrison & Foerster in Washington, DC and adjunct professor of cyberlaw at Catholic University Law School. "You can put any kind of licence restriction you want in a product, but there is a question about some of those being against public policy," he said.

"If a spyware company had a restriction that said the product may not be used for the purpose of investigating whether it is spyware, that restriction would be hard to enforce, for the reason that it goes against public policy," Kennedy said. "The Federal Trade Commission might attack such a restriction as unfair or deceptive."

Ben Edelman, a Harvard Law School student and spyware researcher, agreed. "When these provisions have been challenged, they have been rejected," he said.

In January 2003, a New York judge ordered Network Associates, now McAfee, to stop using a licence provision that barred product reviews or benchmark tests. "That's good law, a clear precedent, exactly on point," Edelman said.

Tools such as SpyMon are the reason why organisations such as the National Centre for Victims of Crime and the National Network to End Domestic Violence, have joined the Anti-Spyware Coalition, said Ari Schwartz. Schwartz has led the work of the coalition of software companies and consumer advocates, which was created to come up with a definition of spyware.

"They joined because of their concern about the increasing use of commercial keystroke loggers by stalkers and perpetrators of domestic violence," Schwartz said.

For now, RetroCoder has only sent an e-mail warning to Sunbelt, Ball said. "I will be consulting with our solicitor in the next few weeks about companies like Sunbelt... and how best to involve the UK authorities in action against them," he said.

Copyright law plainly wasn't designed for what RetroCoder is using it for, said Christopher Brody, a partner at Clark & Brody in Washington, DC. "Copyright laws prevent copying, not examination and I question the enforceability of such a clause based on copyright ownership," he said.

Sunbelt is unfazed by RetroCoder's action. "Their claims are patently ridiculous," said Sunbelt President Alex Eckelberry. "We're in the business of researching software. We're not intimidated by this kind of thing and I don't think anybody else should be."