Gevalia spamming


A number of people have contacted me over the last week pointing out that Paul Wagner was handed a negative jury verdict in his lawsuit against Gevalia and Connexus. (background Wash Post Article Washington Post verdict article, Ken Magill Article).
I spent some time this afternoon downloading different documents from Pacer trying to understand what was going on in the case and what the implications were. This lawsuit was originally filed in 2008 and has had nearly 600 documents filed with the court. Suffice it to say, I didn’t start at the beginning and work forward, I started at the end and worked backwards.
Beyond Systems, Inc. filed suit against Kraft and Connexus for spamming addresses under the California and Maryland anti-spam laws.
This recent “mini-trial” assessed 3 questions:

  1. Whether Beyond Systems is a bona fide “interactive computer service provider” entitled to bring suit under the Maryland Commercial Electronic Mail Act
  2. Whether Beyond Systems is a bona fide resident of the state of Maryland within the meaning of the MD anti-spam statute
  3. The nature of the relationship between Beyond Systems, James Joseph Wagner and Hypertouch.

This was actually broken down into 2 phases.
Phase 1 asked the jury to determine if BSI was an “interactive computer service provider” as defined by Maryland and California law (jury instructions for phase 1). The jury determined that BSI was a computer service provider under the MD and CA laws.
Phase 2 asked the jury to determine if BSI was a bona fide service provider under the MD and CA laws. The jury instructions for phase 2 define bona fide for the jury.

A bona fide ICSP [Interactive Computer Service Provider under Maryland law] and EMSP [Electronic Mail Service Provider under California law] is an entity that primarily and substantially provides the services set forth in the Maryland and California statutes.
An entity is not a bona fide ICSP or EMSP if it primarily or substantially engages in bringing anti-spam litigation.

The jury found that BSI was not a bona fide service provider under the Maryland and California laws.
Not having the stomach to read through 560+ legal filings and the attached exhibits, I can’t comment on the jury’s verdict. They have much more data about this than I do. I expect that their ruling is spot on, though.
It’s frustrating, though, to watch people bring suit against large companies that are definitely spamming and do it so incompetently that the defendants can continue to spam. It’s no secret that Gevalia has been hiring affiliate marketers that send spam on Gevalia’s behalf for a long time.
It’s also frustrating to listen to the lawyers for the plaintiff argue that no one was harmed because the email address that received the spam didn’t actually belong to anyone.

21. None of the emails over which BSI sues were sent to any Maryland resident. Instead the emails were sent to misaddressed email address [sic] and/or to email addresses that nobody used to send and receive email. Document 539, p 13

I get why they’re arguing that legally, but sending an email to a non-existent email address isn’t exactly a case of no-harm, no-foul. Even rejecting mail sent to non-existent addresses uses resources on a mailserver. We’ve seen major ISPs with massive infrastructure get overwhelmed with incoming email to the point where they have to defer connections from legitimate senders. Smaller senders getting hit by spammer attacks suffer even more.
Of course, when you’re the lawyer for a bunch of spammers sending dozens of ads a day to a single recipient, what else can you do but blame the victim for actually accepting what you’re sending?

Why, look, Gevalia are spamming me, too.

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  • I imagine at some point somebody is going to make the argument that it may be legally iffy to use spamtrap hits as a sign of a spammer….not sure I would agree with such an argument, but surely, it’s going to happen.

  • I’m kinda surprised it hasn’t happened yet, quite honestly.
    It is one of the reasons I try and be very explicit in my language about what information mail to a spam trap is telling clients. Because there are reasons people send mail to traps that isn’t spam. I mean, I sent mail to one of your traps once because I mistyped your email address in my mail client. But, by the same token, that’s one misdirected email.
    The guys who are spamming for gevalia? That’s dozens of emails a day, from rotating domains and to a set of addresses that never opted in to anything. It’s the volume that causes the problem. And spammers throw out a huge amount of volume.

  • Twelve years after we learned “sue us” is not a great antispam business model, we learn that “sue them” is not all that great a business model either?

By laura

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