According to stipulations filed yesterday Penkava and Yahoo! have agreed to go to private arbitration. This will happen before September 1, 2013. Also filed yesterday was an agreement that Yahoo! has until September 7, 2012 to respond to the complaint.
Venkat also commented on the Holomaxx v. MS/Y! ruling.
As with blocking or filtering decisions targeted at malware or spyware, complaining that the ISP was improperly filtering bulk email (spam) is likely to fall on unsympathetic ears. It would take a lot for a court to allow a bulk emailer to conduct discovery on the filtering processes and metrics employed by an ISP. (Hence the rulings on a 12b motion, rather than on summary judgment.) Here the court reiterates the “good faith” standard for 230(c)(2) is measured subjectively, not objectively. That puts a heavy burden on plaintiffs to show subjective bad faith.
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A friend of the blog contacted me earlier today and pointed out that the news that Dan posted about Yahoo and engagement that I blogged about last week was actually reported by George Bilbrey in a Mediapost article on August 1.
Read MoreIn a post this morning, Dan Deneweth from Responsys says he’s received confirmation from Yahoo that they have increased the value of engagement metrics when making delivery decisions.
The really great thing, for the ISPs, about engagement metrics is that they directly measure how much a particular email is wanted by recipients. There’s no guessing about it, it measures how engaged the recipient is with a mail. Even better is the fact that, unlike proxy metrics, engagement metrics are extremely difficult for the sender to manipulate. As a sender I can artificially lower complaints and bounces without improving the mail I’m sending. But I can’t improve engagement metrics without actually engaging my recipients.
As I wrote back in 2010: