The spokesman for 180Solutions whom I contacted reiterated that the suit was dropped because Zone Labs had made several concessions. "Since we filed the lawsuit, Zone Labs changed two things in their notifications," said Sean Sundwall, director of corporate communications for 180Solutions. "First, they now label our software as 'suspicious' instead of 'dangerous.' Second, they have softened their language about monitoring mouse movements and keystrokes from 'is' to 'may try.' So for them to say nothing has changed is simply false. The reason we dismissed the suit is because the slight change in labeling, combined with the shrinking relevance and marketshare of the ZoneAlarm application, has allowed us to move forward with a handful of business deals that the original labeling prevented."

But John Slavitt, general counsel for Zone Labs' parent Check Point Software, countered that the only changes to ZoneAlarm notifications were made before 180Solutions filed the lawsuit. "As would be our practice when any company contacts us about their classification, we did a second review of their products," Slavitt described the chronology of events. "We then informed them that we thought our assessment was right the first time and that the products' behavior still put them in the same categorization. But we also informed them that, as part of a general review, we were changing the screenshots that appear for that classification, and we showed them samples of what the screens would say. All of this was provided to them before they filed the lawsuit. They believed it was not adequate and they went ahead with the case at that time, and now I guess they believe it is adequate and they've dropped it. But we did not make any concessions in this case, and we were prepared to continue to defend it vigorously."

Since it filed its motion to dismiss the case without prejudice, 180Solutions retains the right to pursue the action as well. "To be clear, Zone Labs continues to have the most egregious and false representation of our software in the entire scanning application industry," says Sundwall. "Their labeling is completely out of touch with the industry accepted practices of the Anti-Spyware Coalition, which may be why they are the only notable scanning application company not affiliated with that important industry body."

Zone Labs doesn't particularly seem to care which industry bodies 180Solutions believes to be important. "Our products work on behavior, not on a name," Slavitt said. "Our objective is to protect our customers, and ZoneAlarm products protect the computers of over 30 million. We design our products and make our assessments based on that, and we think by providing sound research and behavior-driven technology that we're giving our customers what they expect from us."

Well, take a wild guess which side of this story I believe. I can't help but suspect that the real reason for 180Solutions' abject surrender in this case is all the other legal problems it faces, topped by the welcome news last week about the Center for Democracy & Technology filing a complaint against it with the FTC. The more time that the spyware/adware crowd's lawyers must devote to defending their clients, rather than attacking the companies that protect our computers against them, the better.