New York-based Internet advertiser WhenU.com won its petition for a preliminary injunction Tuesday, stopping Utah's Spyware Control Act from going into effect until a judge rules on its constitutionality.

Third District Judge Joseph C. Fratto Jr. granted WhenU.com's request for a preliminary injunction, according to state court spokeswoman Nancy Volmer, stating that the "threatened injury to the plaintiff outweighs the injury to the defendant" and that WhenU proved that it would have sustained "irreparable harm" if the spyware law had gone into effect.

In April, the company sued the state, Gov. Olene Walker and Attorney General Mark Shurtleff, alleging that the Utah law — passed by the Legislature during the 2004 general session — violates the U.S. and state constitutions, along with federal commerce and copyright laws.

The act targets spyware, which is software that monitors computer users' Internet activity and sends that information elsewhere, in many cases without users' knowledge or consent. The law also seeks to curb pop-up advertisements, penalizing ads that obstruct Web pages at $10,000 per violation.

WhenU and the state completed their closing arguments Tuesday. WhenU attorney Celia Barenholtz argued for the injunction, stating that the company would be "subject to enormous damage" between now and the time the court ruled on constitutionality issues.

"There is no doubt that the company will be subject to lawsuits the minute the stay is lifted," Barenholtz said, arguing that there are people and companies who would be "aggressive" in their claims against companies like WhenU. Further, Barenholtz said, the costs to the company of complying with the law would be "incalculable."

Fratto issued his ruling granting WhenU's request Tuesday afternoon, Volmer said. The act is stayed until a court rules on the merits of the case. Had Fratto denied the request, Volmer said, the law would have gone into effect immediately.


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