Spyware vs. Spyware: Software Conflicts and User Autonomy

16 Ohio State Tech Law Journal 25, 2020

Cornell Legal Studies Research Paper No. 20-22

43 Pages Posted: 4 May 2020 Last revised: 26 May 2020

Date Written: April 7, 2020

Abstract

In July 2019, Apple silently updated macOS to uninstall a feature in the Zoom web-conferencing software from users' computers. Far from being an abberation, this is an example of a common but under-appreciated pattern. Numerous programs deliberately delete or interfere with each other, raising a bewildering variety of legal issues.

Unfortunately, the most common heuristics for resolving disputes about what software can and cannot do fail badly on software-versus-software conflicts. Bad Software Is Bad, which holds that regulators should distinguish helpful software from harmful software, has a surprisingly hard time telling the difference. So does Software Freedom, which holds that users should have the liberty to run any software they want: it cannot by itself explain what software users actually want. And Click to Agree, which holds that users should be held to the terms of the contracts they accept, falls for deceptive tricks, like the the virus with a EULA. Each of these heuristics contains a core of wisdom, but each is incomplete on its own.

To make sense of software conflicts, we need a theory of user autonomy, one that connects users' goals to their choices about software. Law should help users delegate important tasks to software. To do so, it must accept the diversity of users' skills and goals, be realistic about which user actions reflect genuine choices, and pay close attention to the communicative content of software.

Keywords: Spyware, Software, User Autonomy

JEL Classification: k00

Suggested Citation

Grimmelmann, James, Spyware vs. Spyware: Software Conflicts and User Autonomy (April 7, 2020). 16 Ohio State Tech Law Journal 25, 2020, Cornell Legal Studies Research Paper No. 20-22, Available at SSRN: https://ssrn.com/abstract=3570703

James Grimmelmann (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

Cornell Tech ( email )

111 8th Avenue #302
New York, NY 10011
United States

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