WhenU SaveNow

» see whenu.com as it lived, on the wayback machine

~ the last words ~

WhenU spent its entire existence arguing in american courtrooms that it was an advertising company. That is an unusual way for a piece of Windows software to spend its life, and it is the most interesting thing about this one. The code itself was ordinary. A program called Save, or SaveNow, arrived attached to some free download you had wanted, and from then on it showed you pop-ups matched against the site you happened to be looking at.

The matching was done locally: the URL you visited or the term you searched was compared against a list of advertisement categories held on your own machine, which was the technical basis for the company's entire legal defense. The formats you would recognize were a pop-up in the bottom right corner and a pop-under sitting behind the page you were reading. WhenU told anybody who asked that its software was installed on 25 million to 30 million desktops. The business model was the one Gator had already built, and the company that made Gator eventually renamed itself Claria, which tells you roughly how well the category aged.

The distance for me here is legal rather than geographic. Bundled adware absolutely reached Turkey, because that is simply what a download was in 2003. But WhenU's real product was the argument that it was legitimate, and that argument was only ever made to american judges and american antispyware vendors. Nobody in a cafe in Ankara was in a position to accept or reject it.

~ the record ~

~ contextual advertising ~

Avi Naider ran the company out of New York and put considerable effort into being the respectable one. Naider testified before Congress in March 2004, and Bloomberg ran a profile that June under the headline "Adware Crusader". The argument was always the same: the software could not be installed without a disclosure screen appearing and the user clicking through it, the ads were served from a local list rather than from surveillance sent home, and this made WhenU an advertising business rather than a spyware business.

It worked well enough that TRUSTe put WhenU's software on its whitelist of certified applications. It also worked, briefly, on the security industry: in February 2005 both Lavasoft's Ad-Aware and Computer Associates' PestPatrol quietly stopped detecting WhenU as adware while continuing to detect everything that looked exactly like it. Nobody explained why. Ad-Aware put it back on the list a month later. There was a third ad format, one WhenU called panoramic, that stretched along the bottom of the screen, and it is a good illustration of the gap between the legal position and the lived experience of the software.

~ the lawsuits it won ~

1-800 Contacts sued in October 2002, on the theory that a pop-up for a rival lens retailer appearing over the 1-800 Contacts website confused customers about who they were dealing with. In December 2003 Judge Deborah Batts in the Southern District of New York granted a preliminary injunction, finding the Lanham Act trademark claim likely to succeed while throwing out the copyright claims.

The Second Circuit reversed on 27 June 2005. The holding was narrow and devastating: WhenU had never made "use" of the trademark in the sense the Lanham Act requires, because the mark appeared only in an internal directory the user never saw, and nothing WhenU displayed carried the mark at all. The injunction was vacated and the trademark claims dismissed. Utah went the same way. That state passed a Spyware Control Act signed on 3 March 2004; WhenU sued; after argument in June a judge granted WhenU a preliminary injunction on 22 June 2004, and the state's motion for reconsideration was denied that September. An adware company had successfully blocked an anti-spyware statute from taking effect.

~ february 2008 ~

There is no announcement anywhere and Wikipedia's article is still written in the present tense, so the date has to come off the archive, and the archive is unusually clear about it. Through 14 February 2008, whenu.com served a full corporate site of roughly 3,460 bytes, with sections for about, products, privacy and a news column down the side. On 20 February the same address returned eight lines of HTML reading "Service Unavailable".

On 6 March 2008 it came back at 602 bytes, and the entire document was a meta refresh pointing at /support. That is the death. The same 602 bytes were still being served in December 2010, and through 2012, unchanged. The date also happens to be the one MediaPost identified when it reported on 1 April 2008 that Vomba Network had bought WhenU some weeks earlier: nobody announced the deal and no price was ever published, and the industry only worked it out because the end-user license agreement was updated on 6 March to name a new corporate parent. Same day the homepage stopped existing.

~ the uninstall desk ~

The page that front door pointed at is worth reading. "Welcome to WhenU's Customer Support Center", it opens, and then explains that its purpose is to answer questions about the products and "how to either add them to or remove them from your Web surfing process". There is a line directing you to the Uninstall WhenU page and a phone number, 1-866-WhenU-11, if you cannot find what you need. The copyright notice at the bottom still read 2006 in 2008, and still read 2006 for as long as the page was served.

So the ending is not a shutdown notice or a bankruptcy. A company that had beaten a federal appeals court and a state legislature simply took down everything it had used to argue with, kept one page up, and made that page the only thing at the address. The last successful capture is 11 June 2012. whenu.com answers nothing over plain http or https now. For four years, the whole public presence of a business that once claimed thirty million desktops was a help desk for getting it off yours.

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