This had to be poorly litigated. They obviously failed to educate the judges on the the deceptive aspect of gator.
The judges made their ruling based on the fact that users are willingly accepting gator onto their systems. Therefore they asked for whatever function it may perform.
They really missed the boat. Most users have no idea they are receiving gator, and if they do they have no idea what it does. This has potential to inspire a war so nasty that most users end up totally disabling client side scripting.
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