e360 in court again

Today’s edition of Magilla Marketing announced that Dave Linhardt and e360 have sued Comcast. Spamsuite.com has the text of the complaint up.
On the surface this seems quite silly. e360 is alleging a number of things, including that Comcast is committing a denial of service attack against e360 and locking up e360’s servers for more than 5 hours. Additionally, e360 is laying blame at the feet of multiple spam filtering companies, including Spamhaus, Trend Micro and Brightmail.
One of the more absurd claims is that Comcast is fraudulently transmitting ‘user unknown’ messages. At no point do they explain how or why they think this is the case, but simply assert:

Comcast has transmitted fraudulent bounce information to e360’s mail servers specific to email addresses contained on e360’s opt-in marketing list. The responses sent by Comcast mail servers to e360 are fraudulent because they contain information indicating that the email address is invalid and not active. As an email marketer, e360 relies on bounce information from Comcast’s mail servers to determine whether e360’s customer email addresses are still active and deliverable. e360 has information and reason to believe Comcast is intentionally transmitting fraudulent bounce information to e360 in an attempt to discourage e360 from sending additional email messages. By transmitting fraudulent bounce information, Comcast is effectively destroying e360’s proprietary assets and the value contained in e360’s opt-in database of email addresses. Such statements are made on information and belief as only Comcast has access to and knowledge of the accounts it has and will not allow e360’s emails to be delivered regardless of account activity.

I really do not think that Comcast is maliciously and deliberately faking that addresses are dead in order to destroy e360’s business. It just does not pass the sniff test. Why would Comcast do that? What possible benefit could there be to doing that?
Another interesting bit of the complaint is e360’s assertion they have been approved for the SenderScore Certified program offered through ReturnPath. Ken interviewed George Bilbrey. According to Ken

However, George Bilbrey, head of Return Path’s delivery assurance unit said e360 had not been certified.
“He applied and didn’t gain admittance to the program,” Bilbrey said, declining to elaborate.

The punchline is e360 is suing Comcast for around 21 million dollars because Comcast is being MEAN and, well, here’s what e360 has to say:

58. At the same time that Comcast is blocking e360’s email messages that are compliant with Comcast’s polices, Comcast is allowing other email marketers with substantially similar business practices as those employed by e360 to send email messages to Comcast’s customers.
59. Comcast’s refusal to deliver email sent by e360 while allowing its competitors to freely transmit email puts e360 at a disadvantage and creates an un-level playing field on which e360 must compete.
60. Upon information and belief, Comcast has made agreements, either written or verbal, to allow certain email marketers to send or transmit email without interruption regardless of whether such email meets Comcast’s Acceptable Use policy. Based on these agreements, Comcast has applied its policies with certain email marketers in a way that is materially different than Comcast’s application of its policies to e360’s email messages. Such statement is made upon information and belief because only Comcast can verify with whom they have agreements with to allow mail to be sent to their customers.

It will be interesting to see what happens once the judge reads the complaint. In my very non-legal opinion I am not seeing a real cause of action here. There is case law and statutory law that says ISPs have the ability to filter mail to their subscribers. Apparently e360 thinks they can convince a judge to ignore facts and law in order to make Comcast stop being mean to them.

Related Posts

Do you know where your addresses go?

Being a deliverability consultant, I end up signing up for a lot of lists and providing email addresses to a lot of different websites I may not normally trust with my email address. The only way to manage the resulting volume of email is using a disposable address system. There are a number of commercial versions, but we built our own system.
Any time I need to sign up with a client, I create a new email address. Part of the address creation process involves making notes about where and when the address was used. When mail is received at any of the email addresses I have used, that email is appended with the data I provided at the time I signed up and forwarded to a mailbox on my main system. If an address ends up compromised or sold and getting too much mail, I can just turn it off. This system allows me to freely hand out addresses, without a large amount of mail ending up in my primary mail box.
Disposable addresses great way to monitor what my clients are doing with my email address. I have found, in at least 2 cases, that my clients are doing nothing wrong, but there are leaks in their process that lets email addresses get out to spammers. My reports of data leaking were the first they knew about any problems with their vendors or customers.
I strongly recommend any marketer who shares any data, include in that data test or seed accounts. Sign up for your own lists, using unique addresses, so that you can see what kind of mail your subscribers are receiving once they sign up at your site. If you are providing data to customers or vendors, include unique test data in each list. If you start getting unexpected mail to those addresses, you can track back to the specific vendor with the data problem.
Your email address list is one of the biggest assets your company has. Protect that asset by monitoring what others are doing with it.

Read More

Goodmail

Goodmail made a splash on the email marketing and ISP industries a few years ago by announcing their CertifiedEmail program. They guaranteed that using their certification would result in email going directly to the inbox, and all images in the email would be displayed by default. Senders using Goodmail would pay money, per message, and Goodmail would split that money with the receiving ISP.
This sounds very much like a situation where everyone wins. The senders get their mail to the inbox with images turned on. The receiving ISPs get a little money to deliver email and offloads some of their sender screening onto a third party. Individual recipients know that this email is certified and that it’s safe to click on links in the email.
In the time since CertifiedEmail has been announced, however, there seems to be very little adoption. Sure, receivers do seem to be signing up, a little. AOL and Yahoo have been using CertifiedEmail for a while. In summer 2007, a number of cable providers announced they would be using CertifiedEmail as well.
Senders, on the other hand, don’t seem to be adopting this as fast as Goodmail might like. The Federal Government recently announced they would be sending email signed by Goodmail and some large online companies, Overstock.com among them, are also sending with certified email. In order to get more companies to sign up for CertifiedEmail, Goodmail announced in August 2007 that they had partnered with CheetahMail, Episilon and Axciom Digital to provide free CertifiedEmail to qualifying customers of those ESPs.
Why might companies not be adopting CertifiedEmail? I have a couple of thoughts.

Read More

Yahoo blocks unauthenticated PayPal and eBay Mail

Yahoo announced this morning that over the course of the next few weeks Yahoo would roll out a new feature to their email that blocks any unauthenticated email from eBay and PayPal.
In a blog post Nikki Dugan says:

Read More