Appeals court rules in e360 v. Spamhaus

On August 30, 2007 I wrote my very first blog post: 7th Circuit court ruling in e360 v. Spamhaus. Today, 4 years later (almost to the day) that case may finally be over.

After a bench trial on the issue, the district court awarded e360 a mere $27,002, a far cry from the millions of dollars that e360 sought. Both parties have appealed. We conclude that the district court properly struck most of e360’s damages evidence, either as an appropriate discovery sanction or for proper procedural reasons, and we reject e360’s challenges to the judgment. We also agree with Spamhaus that the evidence failed to support the modest award of $27,000 in actual damages because e360 based its damage calculations on lost revenues rather than lost profits. We vacate and remand with instructions to enter judgment for e360 in the nominal amount of three dollars.  Judge Hamilton, opinion

Spamhaus posted the final judgement. The full opinion is also available.
HT: Mickey Chandler who posted a case summary and a bit more of the background on what is going on than I managed.

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e360 and the appeals court

Oral arguments in Spamhaus’ appeal were held last week. Mickey blogged about it on Thursday. I heard from him and a bunch of the Spamhaus folks about it at MAAWG, but was busy enough that I didn’t get a chance to listen to it. Mickey is not exaggerating on how badly the judges, particularly Judge Posner, beat up on e360’s lawyer. More quotes are available at Appeals judges berate spammer for “ridiculous,” “incompetent” litigation.

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Email news

ReturnPath sold its email change of address division to Fresh Address and spun off its email marketing division. Full announcement at the RP Blog and a copy of the press release at EmailKarma.
e360 petitioned the court earlier this week to compel Spamhaus to expand on their answers to e360’s interrogatories. Today the court denied the motion. Text of the motion at Mickey’s place.
There has been a noticeable increase in registrar phishing over the last week. This may be related to ICANN de-accrediting ESTHosts, a registrar well known in the anti-spam community for registering domains used in phising and spam. UPDATE from ICANN.

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News snapshot

  • The judge in e360 v. Spamhaus has denied Spamhaus’ motion for dismissal. However, the judge also ordered that the 16 new witnesses be stricken and capped damages at the original $11.7M. Mickey has the order.
  • Tuesday the FTC announced it had shut down a major spamming operation. I am not sure the results are visible yet, yesterday there were 2041 spams in one of my mailboxes yesterday versus 2635 a week ago.
  • The FBI announced today it had infiltrated and shut down a international carding ring. While not directly spam related the phishers and carders work together and some of them use spam.
  • Rumor has it that many mailers are seeing problems delivering to AOL the last few days. It seems that AOL is making adjustments to their filtering system. As when any ISP changes filter rules and weights, some of the people just skirting by see delivery problems. What people are hearing is that if they are seeing delivery problems at AOL they need to improve their reputation.
  • Last week Yahoo had another online workshop with the mail folks. They have published a transcript of the talk. I was at the talk and there were only a couple spam related questions.

donhburger: Why does Yahoo sell our email addresses to spammers?
YMailRyan: We absolutely don’t sell your addresses to spammers. No IFs, ANDs, or BUTs about it.
imintrouble: My mom keeps emailing em but I never get it and usually it ends up in my spam box. Why? How do I make this stop? She’s getting pissed that I’m not replying.
YMailTeam: Oh no! Be sure your Mom is on your contact list– this should help keep mom out of spam box and put her back into your inbox.
buergej: Just why do I keep receiving the same kind of spam from a series of what appear to be women day after day after day?
YMailCarl: Spam is, unfortunately a constant problem for anyone using email. The reason you are receiving these emails is because spammers have somehow gotten a hold of your email address and are mailing you their lovely messages. There are several things you can do to assist with this. First, continue to report these messages as “Spam” by clicking the button at the top of the email labled “Spam”. Note that you don’t need to actually look at the message to do this. When you report items as spam it lets Yahoo! know that messages originating from that person are likely spam. This not only helps you, but helps other Yahoo! users as well.
YMailCarl: Second, if the emails are from similar names, you can set up filters in your email account to block those names and send them to your trash or spam folder.
YMailCarl: Obviously these messages you are receiving are not from women trying to sell you products personally – the messages are typically generated by a script which will try to forge or “spoof” the originating address.
YMailCarl: We agree that Spam is a serious issue and have many resources dedicated to fighting this problem.
YMailCarl: You can find some additional information about fighting spam here: http://help.yahoo.com/l/us/yahoo/mail/original/abuse/index.html
donhburger: Why when I mark Emails as Spam do I continue to get emils from the same persons?
YMailMaryn: When you mark a message as “spam” from within your Inbox that moves the message to your Spam Folder. And all subsequent messages that are sent from that particular sender will not be delivered to your Inbox, but will be delivered to your Spam Folder.

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