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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.

10 comments

  1. Steve White says

    Steve White here,
    Having understood the CDA law, I would have to agree that Holomaxx and others in their position would not have much of a case. I can only say that the net neutrality law just recently passed has language which bars wired carriers from blocking legitimate commerce. If ISPs are free to block as they wish as per CDA, then the only thing stopping them from blocking everything is false positives and losing users who don’t receive wanted mail. I know it doesn’t make sense for them to do that.
    In the case of Yahoo, I have seen IPs that do no get any complaints whatsoever get the dreaded “deferred due to user complaints.” It’s a generic message they issue when volume is in excess OR when complaints go beyond a threshold. Yahoo’s MTA’s do not comply with RFC 2821 in that the 451 deferral should not be given until after the Mail From command is issued. Finally, Yahoo is unlike other ISPs in that the allowed complaint rate is per a 4 hour window and not a percentage of mail volume. (Yes, it’s true, I’ll cite source if need be)
    Assuming a 100% inbox delivery a 0.1% complaint rate is not abnormal in any way. Most of my double-opt in clients that send promotional newsletters are in the 0.1% range. Again, that’s assuming 100% inbox delivery. Approaching 0.3% I would say something isn’t right.
    Be nice 🙂 ……………..

  2. William Silverstein says

    A few things. I have seen the deferrer message, but I believe it could be because the e-mail looked spammy.
    Where is the statutory text of the net neutrality law.
    Blocking e-mail is not the same as blocking content. Blocking e-mail is simply not permitting the use of an ISP’s mail server for the relaying of e-mail. The bytes still pass through the broadband network infrastructure, but the mail server does not permit the connection, mark that particular e-mail spam, or place the the e-mail into a spam folder.

  3. Steve B says

    I recently started sending peoples gas bills to a 100% opt in list and STILL get regular complaints. Those people are unsubscribed and when their gas is turned off due to non-payment its on them.

  4. Miles says

    I’m not sure that your complaint rate math *has* to be accurate (6,000,000 emails a day and 6,000 to 18,000 complaints). Only mail that gets delivered to the inbox can receive complaint (ie, marked as spam). I’m guessing that a large portion of the mail was delivered to the spam folder; rejected; discarded; or throttled. That would drop the denominator, thus raising the complaint rate.

    1. laura says

      I’m not sure my math has to be necessarily right, and I suspect the complaint rate Yahoo saw was significantly higher. However, a lot of senders talk about complaint rates based on the numbers of emails that they send, not the numbers of emails that make it to the inbox. I can’t tell you the number of calls I’ve had where clients (and prospects) tell me how great their complaint rates at Yahoo are. Invariably, the complaint rates are solidly in the 0.1 to 0.3% range, but are unweighted for inbox delivery.
      I probably could have made that clearer in the text.

  5. R. Asby Dragon says

    This is in response to “Steve B”s post about sending gas bills.
    Steve, you need to provide more info regarding your deliverability issues:
    1) Who *actually* is sending the bills? (emailer/ESP)
    2) Who’s rejecting them?
    3) What utility company are you with?
    I’m not in Laura’s league regarding email issues, but I’ve been around a while..
    (Laura, tell Steve I’m still using SamSpade and started using it when it was first released; that should establish my beard length)
    I’ve seen the results of “poor choices” on emailers/ESPs far too often; and it’s almost funny on this one… I’m retiring from a public utility who started doing “outside email” about 15 years ago, Our engineering group didn’t like the way the utility was doing it, so they hired an outside “company?” to handle their email. Take a wild guess… their boss answered a spam and hired the clowns. You can guess the rest.
    My personal take is that “Steve B” is a probable troll.
    Anyone doing business as a “gas company” should have been doing due diligence on following up on this issue both in-house and externally.
    Utility disconnects are an ugly item from many angles. (And *yes*, I’ve been “The Man On Site” shutting off the electricity with law enforcement to protect my ass!) Every disconnect is a loss of revenue, and doing a “cut” on someone just because “Steve B”s
    “utility” can’t do email right opens up a huge can of ‘legal whup-ass’. I’d love to see the results of a few well-placed civil (and in the case of .handicapped customers, even criminal) lawsuits from this.

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