That is... the definition of malware. I notice that lately people have been moving the goalposts so they can justify things like hidden telemetry as not being spyware.
Not moving goalposts, just saying we need to be more precise in our categorization of software. Calling all proprietary software "badware" doesn't really convey much information. We should create more meaningful categories that convey what the software is actually doing that is undesirable.