In near completion of their slide into the Dark Side, the Electronic Frontier Foundation has offered its congratulations to the malware makers WhenU on a recent court decision that will permit WhenU to generate pop-up ads over the websites of trademark holders.

The case involved 1-800-Contacts, who sued WhenU to stop them from generating pop-up ads for competitors when users attempted to visit the 1-800-Contacts website. The EFF had offered an amicus brief that raised some good points about the current state of trademark law, but ultimately failed to miss the larger point of WhenU’s unfair and deceptive practices.

According to the EFF’s Fred von Lohmann:

“A trademark owner is not entitled to control your desktop just because you happen to be visiting its website. […] This decision is good news for consumers who want the freedom to install tools that help them customize their web-surfing.”

Forget that WhenU’s software, like other malware companies’ products, often winds up on consumers’ computers without their knowledge or permission. Forget that when somebody wants to do business with 1-800-Contacts, the unasked-for, unwanted pop-up ad interferes with that business transaction. Forget that 1-800-Contacts has invested heavily in building a brand name that companies like WhenU, and the clients whose ads they deliver, are attempting to unfairly leverage.

The EFF would have you believe that the WhenU case is about a corporation — whose website you are trying to visit of your own free will — trying to somehow seize control of your desktop and prohibit you from using all your favorite Firefox plugins. This spin on the dispute is not merely deeply disingenuous, it’s downright intellectually dishonest.

Far from permitting consumers to exercise more control over their desktops, and be presented with more choices, malware companies themselves are seizing control of peoples’ computers and displaying what the malware company wants them to see, often without ever having asked them if they wanted such an interruption.

Malware companies don’t aid in competition, they interfere with it, using technological trickery to slip in between a consumer and the site they actually wanted to visit. As I wrote in my testimony before the Federal Trade Commission at their 2004 Spyware Workshop:

I believe that the practices of spyware-based advertising companies generally act to turn upside-down the notion of fair competition in a free market, allowing unauthorized parties to free-ride on the investments of others. The result is to, in effect, allow those advertisers who utilize spyware-based pop-up ads to supplement their advertising budgets with the investments made by those whose brands are targeted by the pop-up software.

Through an unfair technological circumvention of the normal advertising process, these advertisers are given the ability to deliver their advertising based not on their own efforts and investment in brand identity and advertising presences, but rather upon the efforts, popularity, brand recognition, and investments of others.

As a result, it is my opinion that the inevitable result of permitting one category of companies to usurp the brands and goodwill of another will cause businesses to reduce their investments in promoting and advertising their Web sites, resulting in less competitive information being presented to consumers.

I used to admire the EFF, back when they worked on actual issues of freedom and liberty. But lately they seem more concerned with trying to find the needle of civil liberties in haystacks of wrong-doing. When real freedoms are being threatened, they’re busy defending bad guys whose behavior actually harms people.

Whether it’s their work defending Grokster (“no, of course our name wasn’t trying to appeal to users of Napster”) or defending WhenU (“consumers love our software, even though 98 percent who install it can’t uninstall it fast enough”), they seem to have lost their way.