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.

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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

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Every mailserver admin, whether managing a MTA for a corporation, an ISP or themselves inevitably looks at the question of false positives and false negatives. Some are more sensitive to false negatives and would rather block real mail than have to wade through a mailbox full of spam. Others are more sensitive to false positives and would rather deal with unfiltered spam than risk losing mail.
At the ISPs, many of these decisions aren’t made by one person, but the decisions are driven by the business philosophy, requirements and technology. The different consumer ISPs have different philosophies and these show in their spamfiltering.
Gmail, for instance, has a lot of faith in their ability to sort, classify and rank text. This is, after all, what Google does. Therefore, they accept most of the email delivered to Gmail users and then sort after the fact. This fits their technology, their available resources and their business philosophy. They leave as much filtering at the enduser level as they can.
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The same types of entries could be written about Hotmail or AOL. They could even be written about the various spam filter vendors and blocklists. Every company has their own way of doing things and their way reflects their underlying business philosophy.

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