9th circuit ruling in Gordon v. Virtumundo

The 9th circuit court of appeals issued their ruling in Gordon v. Virtumundo today. The ruling was heavily in favor of Virtumundo. I have not had time to read the ruling, but both Venkat and Mickey have posts on the case and the ruling.
This is another solid blow against anti-spammers suing spammers under state laws and CAN SPAM. The problem is that many of the cases are brought by people, and lawyers, who fail to understand that just because they don’t like something doesn’t make it illegal. Spammers do a lot of bad things, but the ones you can track enough to sue are generally not breaking the law. Sadly, cases like Gordon and Mummagraphics makes it harder for ISPs to sue spammers that are actively harming the ISP and the customers.

Related Posts

Double opt-in, it's not what you think it is

Bill McCloskey has a post over on ClickZ about single opt-in vs. double opt-in. The post itself is generating a lot of buzz in the industry and has pages and pages of comments. I’m not going to really comment on the post, as I think much of what I would say has been covered in the comments, in posts here and in every email marketing discussion that has happened in the last 5 years.
I do want to comment on one of the comment’s however. This comment makes the assertion that “double opt-in was a term designed by spammers to make confirmed opt-in look too troublesome and problematic to use.”  This is a bit of lore that is deeply, deeply established in the minds of many anti-spammers. There is a core group of activists that are completely convinced that anyone who ever uses the term double opt-in to refer to a confirmation practice is not only a spammer, but a lying scammer. They cannot imagine a world where someone might use this term while actually supporting the practice.
The problem with this belief is that it’s not true. Double opt-in was mostly used by PostmasterDirect (now part of ReturnPath) as a way to market their email addresses. PostmasterDirect actually patented a process for confirming addresses and used double opt-in as a way to distinguish themselves in the market place. It wasn’t that double opt-in was twice as hard as opt-in, it’s that their email address lists were twice as good as those other lists that you might be thinking of buying.
So, no, double opt-in is not spammer speak. It is, in fact, often the speech of a sender who is attempting to do the right thing. The fact that the sender does not know a made up history of a term does not turn them into a lying spammer. Asserting that it does says a lot more about the person making the assertion.

Read More

Language

Over on Deliverability.com Krzysztof posts about discussions going on over on the URIBL list about using “confirmed opt-in” to describe a subscription process versus using “double opt-in” to describe the same subscription process. I do not even need to read the list to know what is being said. This is a disagreement that has been going on since the first usage of “double opt-in” over 10 years ago.
To better explain the vitriol, a little history of the two terms might help.
My personal recollection and experience is that the term “confirmed opt-in” was coined by posters in the newsgroup news.admin.net-abuse.email around 1997 or 1998. There was some discussion about marketers / spammers (a lot of the posters did not distinguish between the two) trying to use the term “double opt-in” instead of “confirmed opt-in.” Many posters believed (and many still do) that this was a deliberate attempt by marketers to make the process seem overly burdensome and unworkable.
During the 2003 FTC spam hearings, Rebecca Lieb shared formal definitions for 5 different subscription types including “Confirmed opt-in” and “double opt-in”. These definitions are still up on ClickZ.

Read More