There’s been a bit of court activity related to spam that others have written about and I feel need a mention. I’ve not yet read the papers fully, but hope to get a chance to fully digest them over the weekend.
First is e360 v. Spamhaus. This is the case that actually prompted me to start this blog and my first blog post analyzed the 7th circuit court ruling sending the case back the lower court to determine actual damages. The lower court ruled this week, lowering the judgment to $27,002 against Spamhaus. The judge ruled that there was actual tortuous interference on the part of Spamhaus. In my naive reading of the law, this strikes me as not only an incorrect ruling, but one that ignores previous court decisions affirming that blocklists are protected under Section 230. Venkat seems to agree with me.
Spamhaus had a viable Section 230 argument here, but this argument got lost in the procedural quagmire. Section 230(c)(2) protects filtering judgments and insulates “action taken to enable or make available to information content providers or others the technical means to restrict access to material [that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable].” (See Professor Goldman’s post discussing Pallorium v. Jared, a California state appeals court case where the court held that a publisher of list of IP addresses for open relays could not be held liable. See also Zango v. Kaspersky.)
I do hope that Spamhaus appeals this ruling.
Second is Microsoft Corporation v. Mizhen et al. This is going to be an interesting case, I think. Microsoft is suing Mizhen, among others, alleging that he gamed Microsoft’s filters by opening up millions of Hotmail accounts and hitting “this is not spam” for his own mail.
The complaint details how Mizhen and his affiliates allegedly manipulated the statistics that Microsoft’s anti-spam system relies on by creating millions of new email accounts and then moving up to 200,000 of their own messages a day from “junk” files into inboxes.
This is actually the second time Microsoft has sued Mizhen. The first case was settled and Mizhen had to pay Microsoft $2,000,000 and promise not to spam MS users any longer, but I suspect that Mizhen may not get off so easy this time.
This case had *nothing* to do with whether Spamhaus caused actual tortuous interference or not, that was already decided due to a legal strategy previously attempted that backfired.
Only the *amount* of damages was up for grabs this time around.
Would love to see some more detailed explanation of that, Dave. I gotta be honest, when I see Laura and Venkat disagree with random angry anti-spam hobbyist, I think I’m siding with Venkat and Laura, absent more detailed information.
Dave is correct. Instead of relying upon others, you can already read the appeal court decision which pretty much says that they knew there was going to be a default if they withdrew from the proceeding at that point. Usually Venkat disagree with any anti-spammer wanting to file suit against a spammer.
One must wonder if Linhardt’s lawsuits was really something that he brought on his own, or was he a front for a bunch of other spammers similar to the EMarketersAmerica v. Spamhaus case? His three separate lawsuit against anti-spamers, then Comcast, and then a list broker makes me wonder.
[…] for Hotmail – what would Hotmail do? Ask Boris Mizhen. Microsoft is currently suing him, alleging that he and/or his agents or associates engaged in this very […]
[…] Boris Mizhen is once again on the wrong side of legal action. This time it’s not as simple as Microsoft suing him for creating hundreds of thousands of accounts to try and game the spam scoring system. Instead, he seems to have run afoul of the FTC. […]