Amendment is futile.

Late last month, Yahoo filed a motion to dismiss in the Holomaxx v. Yahoo case. There’s nothing that unexpected in the filing. The lawyers set the tone of the entire document with their very first paragraph.

This is a lawsuit by a frustrated spammer to attempt to force Defendant Yahoo! Inc. (“Yahoo!”) to deliver millions of Plaintiff’s mass marketing emails each day to Yahoo! customers— namely, users of Yahoo! Mail. No matter the legal theory Plaintiff advances, Yahoo! has no legal obligation to do so. Several courts already have confronted similar claims and soundly rejected attempts by mass e-mail marketers to impose civil liability on email service providers like Yahoo! for blocking bulk commercial email. This Court should as well.

They go on to point out that the communications decency act explicitly immunizes them from liability for their blocking decisions. Yahoo! also spends multiple paragraphs pointing out that the initial lawsuit is deficient legally as it false to state a claim of violation for many of the provisions.
Yahoo! describes their interactions with Holomaxx in 2 paragraphs.

Plaintiff is a self-described mass marketer that attempts to send over 6 million “marketing” emails per day to Yahoo! users. Compl. ¶ 16. By Plaintiff’s own characterization, Yahoo! users complained consistently and vociferously about Plaintiff’s spamming, registering between 6,000- 18,000 complaints a day about Plaintiff’s marketing activities. Id. ¶ 18. In an effort to assist Plaintiff in better complying with Yahoo!’s terms of use, Yahoo! both warned Plaintiff about the escalating user complaints and directed Plaintiff to review and implement Yahoo’s policy on email use and best practices. Id. ¶ 41(a), (c).
Plaintiff does not allege it ever complied with these best practices. Nor does Plaintiff allege that Yahoo! deviated in any way from its standard policies in filtering Plaintiff’s emails as spam. The application of Yahoo!’s usual and customary filtering techniques, triggered by the virtual tidal wave of Plaintiff’s mass marketing emails and resulting Yahoo! user complaints, coupled with Plaintiff’s apparent failure to bring its practices in conformity with Yahoo!’s policies, resulted in the blockage of “most” of Plaintiff’s emails by Yahoo! servers, prior to delivery. See id.

There’s a real nugget of information in this paragraph. If we look at the numbers here (6,000,000 emails a day and 6,000 to 18,000 complaints) we can infer that the Yahoo! filters kick in at a complaint rate between 0.1 and 0.3%.
One of the Holomaxx allegations is that Yahoo! is in violation of federal wiretap laws and illegally accessed mail stored on Yahoo!’s own servers. Yahoo! laughs in the face of these allegations. This is not an area of law I am that familiar with so I don’t have much commentary.
There were two places in the document where Yahoo!’s lawyers use the phrase “black letter law.”  One was in reference to the alleged violation of the federal wiretap statute.

It is black letter law that accessing emails while they are in storage does not qualify as an “interception” under the Act, since for purposes of the Act, interception means acquisition at the time of transmission. See Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460 (5th Cir. 1994). Electronic communications in storage are specifically excluded from reach of the Act.    In making this distinction, Congress not only carved out access to electronically stored communications as an actionable Wiretap violation, but “deliberately structured [ECPA] to afford electronic communications in storage less protection than other forms of communication.”

The second was in reference to the alleged violations of CA state law. Yahoo! asserts that it is under no legal obligation to deliver plaintiff’s mail and that Yahoo!’s conduct was justified. Yahoo! also asserts that it is black letter law that not every interference in a contract is an actual tort.

Interference with a contract is justified “when the person is seeking to protect an interest of greater social value than that attached to the stability of the contract involved.” […] In this case, Yahoo! is justified by its own economic interest in being able to provide email services that promote a good user experience (i.e., as free as practicable from bulk email advertisements), and that do not tax its systems and resources. There is also a broader social interest at stake in reducing exposure to bulk email.

Yahoo concludes their motion:

For the reasons stated above, Plaintiff’s Complaint should be dismissed in its entirety without leave to amend. Amendment would be futile in this case.

I’m not a legal scholar, but this looks like a solid motion. I would actually be surprised if the judge doesn’t grant the motion to dismiss without leave to amend. ISPs are very protected against liability for their good faith spam filtering decisions. The whole argument about wiretapping seems to be an attempt to find some cause of action. Yahoo! is very clear that there is no case and they are immunized.
I’d like to see both this case and the Holomaxx v. Microsoft case go to trial, if only because they are being heard near here and I could actually go. But I don’t expect that to happen. I just don’t think Holomaxx has a case.

Is your mail being bulk foldered?
Some thoughts on permission

Related Posts

Holomaxx dismisses part of lawsuit

Ken announced yesterday that Holomaxx dropped their suits against Ironport and ReturnPath. Suits against Yahoo and Hotmail are still active.
In the Yahoo case, there is a case management meeting on January 14th.
In the Microsoft case, a response the complaint is due by December 17th.
I’m not quite sure what happened to prompt this change, but I think it makes it even more unlikely that the case will be successful. The courts have repeatedly ruled in favor of ISPs in these kinds of cases.
EDIT: I’d link to Ken’s article, but I appear to have closed that tab and I can’t find it on his website. I’ll add it as soon as I do.
EDIT: Ken’s announcement

Read More

Email marketing ulcers for the holiday

I’ve mentioned here before that I can usually tell when the big ISPs are making changes to their spam filtering as that ISP dominates my discussions with current and potential clients and many discussions on delivery mailing lists.
The last two weeks the culprit has been Yahoo. They seem to be making a lot of changes to their filtering schemes right at the busiest email marketing time of the year. Senders are increasing their volume trying to extract that last little bit of cash out of holiday shoppers, but they’re seeing unpredictable delivery results. What worked to get mail into the inbox a month ago isn’t working, or isn’t working as well, now.
Some of this could be holiday volume related. Many marketers have drastically increased their mail volume over the last few weeks. But I don’t think the whole issue is simply that there is more email marketing flowing into our mailboxes.
As I’ve been talking with folks, I have started to see a pattern and have some ideas of what may be happening. It seems a lot of the issue revolves around bulk foldering. Getting mail accepted by the MXs seems to be no different than it has been. The change seems to be based on the reputation of the URLs and domains in the email.
Have a domain with a poor reputation? Bulk. Have a URL seen in mail people aren’t interested in? Bulk. Have a URL pointing to a website with problematic content? Bulk.
In the past IPs that were whitelisted or had very good reputations could improve delivery of email with neutral or even borderline poor reputations. It seems that is no longer an effect senders can rely on. It may even be that Yahoo, and other ISPs, are going to start splitting IP reputation from content reputation. IP reputation is critical for getting mail in the door, and without a good IP reputation you’ll see slow delivery. But once the mail has been accepted, there’s a whole other level of filtering, most of it on the content and generally unaffected by the IP reputation.
I don’t think the changes are going to go away any time soon. I think they may be refined, but I do think that reputation on email content (particularly domains and URLs and target IP addresses) is going to play a bigger and bigger role in email delivery.
What, specifically, is going to happen at Yahoo? Only they can tell you and I’m not sure I have enough of a feel for the pattern to speculate about the future. I do think that it’s going to take a few weeks for things to settle down and be consistent enough that we can start to poke the black box and map how it works.

Read More

Yahoo turns on images by default for RP certified IPs

ReturnPath announced today that images and links from Return Path Certified senders are turned on by default in the Yahoo mail interface. This affects many of the other domains using Yahoo for mail hosting including Bellsouth, SBC, Rogers, BT Internet and Rocketmail.
Overall, I think this is something that Return Path can be proud of. Yahoo fiercely protects their users’ inboxes. They have even gone so far as to cancel contracts with certification companies when the level of certified clients was not to their standards. I have no doubt that this decision was made by looking at the quality of customers that Return Path are certifying and deciding that the certification is a meaningful and useful measure of the mail.
This speaks to the time and effort Return Path commits to both the initial certification process and the ongoing monitoring and compliance processes.

Read More