Spam lawsuits: new and old

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.

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Tagged.com and the courts

I’ve seen multiple reports of Tagged.com and their interactions on various sides of the courtroom aisle.
On the good side, Tagged.com won a judgment against a spammer sending spam to Tagged.com users. (Tagged has a post on their blog about the win, but the direct link to that article doesn’t work).
On the minus side, yet another ruling against tagged.com. They’ve been accused of sending spam, including some mail that looks like a phish. They recently settled in a CA court, agreeing to dispose of certain addresses collected during a 3 month period in 2009.

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McColo goes offline

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In my own mailbox, I have noticed a drastic decrease in the amount of spam over the last week. I am too jaded to expect that the change is permanent, but it is nice while it lasts.

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Spamhaus files for dismissal of e360 case

Spamhaus filed a motion today asking the judge to dismiss the e360 v. Spamhaus case for contempt. Mickey, as usual, has the docs up.
I have not posted much on the case recently, as there was only legal wrangling about discovery going on. The biggest problem being that e360 has dragged their feet, stalled and avoided discovery for the last 8 months. They have missed deadlines, turned over incomplete documents and ignored depositions. Since I last wrote about this case, discovery has been extended multiple times, the judge has compelled e360 to turn over docs and information and he sanctioned e360 for their failures to comply.
From my perspective, Spamhaus’ lawyers have been setting the stage for this motion for the last 4 – 5 months. Their interactions with e360’s lawyers, their motions to compel and their motion for sanctions have all formed a narrative of how e360 is stonewalling discovery.
This particular motion is only about 8 pages long, but references a 125 page exhibit. The very large exhibit is mostly documents that have been published before in the “Motion for Various relief due to Persistent Discovery Defaults” filed in July.
In the July motion, Spamhaus’ lawyers detail their repeated efforts to get discovery from e360, and the utter lack of cooperation. One of my favorite bits is that e360 responded (weeks late) to some of the initial interrogatories with (paraphrased), “It is too hard to write all this down, but we will tell you about it in the depositions.” My understanding of the law is that this is, in and of itself, a bit of a no-no. What really puts the icing on the cake, though, is that e360 then skipped 2 properly noticed depositions. They just did not appear, thus making their answers to the interrogatories utterly meaningless.
Spamhaus requested that the Judge impose sanctions on e360 for failing to appear at 2 depositions, not complying with the judge’s previous orders and generally being unable to actually produce any documentation that is complete or on time. Even better, when e360 did manage to produce a thumb drive it contained multiple email conversations between Mr. Linhardt and his lead counsel. This little oops happened because no one at the law firm bothered to actually examine any of the files before handing over the thumb drive. In fact, they only became aware of their error when opposing counsel notified them of the files. When e360 asked for the information back, Spamhaus’ lawyers refused pointing out that they handed over all the information willingly and that their failure to actually examine the files does not constitute an inadvertent disclosure.
The judge did sanction e360, although not with the severity that Spamhaus’ lawyers requested. He also ordered full discovery and documents turned over by August 15th. Based on my reading of the transcript (exhibit 4) the Judge sounds like he is tired of having to tell the e360 lawyers to do their jobs. The judge lectured e360 on their failure to get thing resovled.

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