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I think that distinction is critical if you're filing a lawsuit or criminal charges. I find it relatively unimportant to the question of how Spybot should classify the software: it's hidden software...

Symantec detects it as a security risk, not as malware. They provide a removal tool, but recommend that you use Sony's instead. Microsoft detects and removes the cloaking, but not XCP itself. McAfee...

I agree with you that any potentially dangerous removal routine should be tested before being released to the general public. If the Spybot team needs to take its time to make sure the removal works...

I'm inclined to agree with CA's list of reasons for detecting XCP:

Installs without user permission, presenting only a vague and misleading EULA
Changes system configuration without user...