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More Gordon v. Virtumundo news

Eric Goldman reviews the appeals court decision in Gordon vs. Virtumundo.

This case is exceedingly interesting and important because it destroys the arguments of anti-spam plaintiffs trying to manufacture technical violations of CAN-SPAM for their profit. Not only does the opinion send an unmistakable message to the lower courts to toss these plaintiffs out on their keister, but it sends the harsh message that these plaintiffs ought to rethink their legal hubris. As the court says, “As should be apparent here, ‘the law’ that Gordon purportedly enforces relates more to his subjective view of what the law ought to be, and differs substantially from the law itself.” Ouch. The court has apparently just invalidated the fantastic laws that some anti-spam plaintiffs dream up in their heads.
This case is also important because it puts state anti-spam laws even more clearly on the ropes. It has been an impressive but pathetic display of futility watching the states trip over themselves trying to show that they are tough on spam when their efforts are all irrelevant in light of the Fourth Circuit’s and now Ninth Circuit’s interpretations of CAN-SPAM. Fortunately (?), most of the states have moved on to being tough on cyberbullying instead of beating up on spammers.

Ken Magill also wrote about the case this week. What was interesting in that article is how Virtumundo attempted to work with Gordon to stop him from being thoroughly trounced in the appeal.

Virtumundo offered to stop trying to collect on the decision if Gordon would withdraw his appeal, but Gordon refused, according to Newman.
When Virtumundo’s collections lawyer showed up at Gordon’s house with a moving van and a sheriff, Virtumundo again offered to stop its pursuit of Gordon’s assets if he would drop his appeal, and he refused again, according to Newman.
Virtumundo’s collections agency then cleared out Gordon’s house, according to Newman.
He added that after seizing the contents of Gordon’s home, Virtumundo offered to return Gordon’s belongings if he would drop his appeal and again, Gordon refused.

I’ve talked with a number of anti-spammer litigants in the past, usually as they try to convince me to testify on their behalf. The problem is, the companies that they are suing really aren’t the problem. Sure, they have some sloppy address acquisition processes and they send mail that recipients didn’t ask for. However, those senders are rarely violating CAN SPAM as I understand the law. Even the companies when the companies are technically in violation of CAN SPAM it tends to be something minor and accidental.
The appeal’s court ruling in Gordon reinforces the findings in Mummagraphics, that statutory damages are not a given unless the plaintiff can demonstrate actual harm. What will be interesting to me is to see what happens when a large ISP goes after a company actually violating CAN SPAM. Is this case law sufficient to deny the ISP statutory damages, or are the courts drawing a line between the guy in the garage hosting mail for a few hundred customers and a larger business entity hosting millions of mailboxes.

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