Today I have a copy of the e360 briefing on Comcast’s motion for judgment on the pleadings.
On a superficial level, the writing of e360’s lawyers not as clear or concise as that of the Comcast lawyers. When reading Comcast’s writings it is clear to me that the lawyers have a story to tell and it has a beginning, a middle and an end. They take the reader through the setup, then through the evidence and case law, then proceed to the remedies requested. There is a clear narrative and progression and it all makes sense and the reader is never left standing. This briefing meanders hither and yon, prompting one person to ask was this written on the back of a placemat in crayon.
I still think e360 is misunderstanding or misstating some crucial facts in this case.
e360 argues that because they comply with CAN SPAM, then their mail is therefore not spam. This is not true (see Al’s post, and my post and John’s post). Complying with CAN SPAM does not mean you are not sending spam. I will go even farther to say that sending super-duper-double-confirmed-with-a-cherry-on-top-opt-in email does not mean you will always get through an ISPs filters. The ISPs have moved away from being in the position of having to decide between a mailer who insists a recipient opted in and a recipient who marks mail as spam. Now, the ISPs look at complaints and if you annoy your recipients, then the ISP is going to filter that mail. It is all about relevancy. It is all about not sending mail that is going to make those users hit the “this is spam” button. And endusers have never cared about permission, spam is email they do not want and if you send it, they will complain about it.
They also seem to have this impression that Comcast is letting all e360’s competitors send email to Comcast. Again, it is all about relevancy. If e36o’s competitors are sending mail that users do not complain about then yes, that mail is going to get through. The problem here is not that Comcast is picking and choosing which ESP gets to mail the users, it is that the recipients are choosing which emails they do not object to. Send emails recipients find useful and relevant, and it does not matter that you scraped their address off a website, they will not report it as spam.
Comcast points out that under the Communications Decency Act (CDA) they are not liable for blocking content. The CDA provides for “Good Samaritan” blocking and screening of content under 2 separate circumstances: 230(c)(1) and 230(c)(2). 230(c)(1) says
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
ISPs are not liable for anything said by someone else on their service or network. The issue here is not activity by someone else on the Comcast network, though, the issue is activity by Comcast. Accordingly, none of Comcast’s filings have claimed immunity under 230(c)(1).
Comcast has claimed immunity under 230(c)(2), which says
2) Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
Under section (c)(2), it seems Comcast is not liable for actions taken in good faith to block material “otherwise objectionable.” Curiously, in the briefing submitted today, e360 ignores 230(c)(2) and speaks only to case law regarding section (c)(1). e360 even states
e360 is not seeking to hold Comcast liable for the actions or statements of a third-party, rather e360 is seeking to hold Comcast liable for its own actions: Comcast’s indiscriminate and improper blocking of e360’s emails.
If this is truly the case, then why did e360 spend an entire page (out of a 16 page brief) discussing case law around 230(c)(1)?
e360 does comment later that Comcast clearly has immunity to block spam, if it deems spam objectionable, but that as e360 does not send spam, the mail should not be blocked. I think this is tenuous, and may be an issue only because Comcast called e360 a spammer and the email spam. e360 further claims they can produce proof of opt-in for every email address they send email to. I expect that Comcast has e360 email to addresses that never signed up to receive the email (role accounts, employees, etc). I also fully expect e360 to produce opt-in data about those accounts. I am actually looking forward to seeing this question litigated: what constitutes proof of opt-in.
The next argument is legal in nature. e360 says that Comcast is interfering in a business relationship. Comcast says that e360 has a statutory obligation to state the exact relationship that is being interfered with and that Comcast must know of the relationship. e360 argues that as Comcast is blocking the mail, Comcast knows exactly who is being interfered with.
e360 is also vociferously defending its claim that Comcast is committing a denial of service attack on Comcast. The Comcast lawyers had a wonderful analogy for this claim in their motion.
By way of analogy, Plaintiff’s allegations can be compared to a telemarketer who calls a phone number and receives no answer. Instead of hanging up, however, the telemarketer stays on the line and allows the phone to ring and ring, then claims that the owner of the telephone number has damaged the telemarketer because he or she was unable to make any other calls during the time the phone continued to ring.
In this brief, e360 claims the equivalent of “any properly functioning telemarketing software will not hang up if the phone on the other end is still ringing.” They are really reaching on this one.
Continuing the reaching, e360 insists that Comcast is a state actor, because they deliver mail and the USPS is considered a state actor. More legalese trying to convince the court that somehow the policies Comcast posts mean Comcast has to deliver mail sent by e360, and that clause about how Comcast has no obligation to deliver email? Oh, that clause is not relevant to the case. Pay no attention to the man behind the curtain.
All in all, I think the brief is weak and does not compare to the compelling narrative from the Comcast lawyers. While I would like to see some of the issues litigated (what constitutes proof of opt-in), I am not seeing a very persuasive brief from e360. Given the quality of the work from the Comcast lawyers, I expect lots of case law and on point arguments in their reply.
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