ComScore's Fulgoni says its software is researchware, not spyware. To focus on nomenclature is to miss the real problem with software like ComScore's. Few people would assert that ComScore has malicious intent in monitoring a user's computer activity, yet there are similarities to many types of malware. In particular, the user gets no benefit, while the software profits by the information it gets through monitoring that computer.The gist of Fulgoni's argument seems to be that ComScore is just trying to do good old American market research, whereas spyware is "intrusive and potentially harmful." No matter the ultimate motives of the software, for the user it comes down to whether they provided informed consent to install the software.

When ComScore is installed through security exploits there certainly is no consent, yet the company has hedged on whether that type of behavior justifies terminating the distributor. In other cases, the company claims that long, multipage license agreements in a dialog or a few clicks away on a Web page serve as adequate disclosure. If the user was to read these agreements, they would see that they are consenting, among other things, to having their credit card information and details about every Web purchase sent to ComScore.

Do users carefully read a dialog box full of legalese, or a small dialog box with a link to a page full of legalese? No. My own PC Pitstop site did an experiment with one of our own products a few years back. These words were put into the license agreement:

A special consideration which may include financial compensation will be awarded to a limited number of authorized licensees to read this section of the license agreement and contact PC Pitstop...

We sold more than 3,000 copies of that product over four months before anyone contacted us. (For his trouble, that person got $1,000.)

Whether the software is "researchware" or "spyware," the same principle applies. When a group can profit simply by installing software and monitoring activity on a PC, there is a negative incentive for them to say much at all to the user of that PC. Given a clear choice with no upside but at least some risk in terms of privacy or system stability, the user will likely say no. If they are using a company computer, you can bet that the IT department would say no. It's clear that both "researchware" and "spyware" are more successful when they make users an offer they can't refuse.