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Megaspammer Monsterhut Loses On Appeal
Werehatrack writes "Much jubilation was expressed in news.admin.net-abuse.email when it was learned that the long-running court battle between PaeTec and Monsterhut had reached a definitive conclusion on Friday with a New York appeals court finding in favor of PaeTec which finally allowed PaeTec to pull the plug on their least-loved customer's connectivity. PaeTec was actually somewhat restrained in its news announcement on its own website, simply noting that they had won and that they had disconnected Monsterhut."
I can't stand those morons who have to requote entire pages because they think they'll be Slashdotted. However, this is different. They linked to a RTF file, and I didn't notice, forcing IE and Word to load. Erk!
So, for all of the people who can't/don't want to read a RTF file.. here is the text of the first link:
(WARNING: It's really boring)
-- starts here --
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PIGOTT, JR., P. J., GREEN, WISNER, SCUDDER, AND KEHOE, J. MonsterHut, INC., PLAINTIFF-RESPONDENT, MEMORANDUM AND ORDER
PaeTec COMMUNICATIONS, INC., DEFENDANT-APPELLANT.
BOND, SCHOENECK & KING, LLP, SYRACUSE (ROBERT KIRCHNER OF COUNSEL), FOR DEFENDANT-APPELLANT. ALFONSO MARRA BAX, LEWISTON, FOR PLAINTIFF-RESPONDENT.
Appeal from an order of Supreme Court, Niagara County (Lane, J.), entered August 27, 2001, which, inter alia, denied defendant's cross motion for summary judgment.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiff's motion, granting defendant's cross motion and granting judgment in favor of defendant as follows:
It is ADJUDGED and DECLARED that defendant is not in violation of the agreement and may terminate the agreement in response to plaintiff's sending of unsolicited, mass, commercial e-mail in breach of the agreement and as modified the order is affirmed without costs.
Memorandum: Plaintiff, a marketing company that uses the Internet for advertising, entered into an agreement with defendant, an Internet service provider, to obtain Internet access services. The agreement incorporates defendant's Acceptable Use Policy, which provides that a subscriber, here, plaintiff, is in violation of the agreement if it engages in "spamming," defined as "[u]nsolicited, commercial mass e-mailing." Shortly after defendant began providing Internet access services to plaintiff, it notified plaintiff of its intention to terminate the agreement based upon plaintiff's spamming. Plaintiff commenced the instant action seeking declaratory relief and an injunction preventing defendant from terminating the agreement.
Supreme Court erred in granting plaintiff's motion for a preliminary injunction. Plaintiff failed to establish a likelihood of success on the merits (see Technology for Measurement v Briggs, ___ AD2d ___ [decided Feb. 1, 2002]; Talley v Baker, 207 AD2d 967), irreparable harm if the preliminary injunction is not granted (see Technology for Measurement, ___ AD2d ___) or lack of an adequate remedy at law (see Matter of Camp Scatico v Columbia County Dept. of Health, 277 AD2d 689, 690). Contrary to defendant's contention, however, the court did not improvidently exercise its discretion in fixing the amount of the undertaking. The amount of the undertaking is reasonably related to the amount of damages defendant established that it might suffer "by reason of the injunction" (CPLR 6312 [b]; see Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 350).
We further conclude that the court erred in denying defendant's cross motion for summary judgment seeking declaratory relief. Defendant established as a matter of law that the agreement prohibits spamming and that neither the two percent complaint limit contained in Addendum 1A, paragraphs 1.4 and 1.5 nor the 30-day notice and cure provision of paragraph 3 applies to spamming. Defendant further established as a matter of law that plaintiff had breached the agreement by engaging in spamming. Plaintiff failed to raise a triable issue of fact. Its submissions in opposition to the cross motion amount to nothing more than "mere conclusions, expressions of hope or unsubstantiated allegations or assertions" that it will be able to prove that it did not engage in spamming (Zuckerman v City of New York, 49 NY2d 557, 562).
We therefore modify the order by denying plaintiff's motion, granting defendant's cross motion and granting judgment in favor of defendant declaring that defendant is not in violation of the agreement and may terminate the agreement in response to plaintiff's sending of unsolicited, mass, commercial e-mail in breach of the agreement.
Entered: May 3, 2002 CARL M. DARNALL Clerk of the Court
mogorific carpentry experiments
Considering they sued the last one. I mean, would you hook these people up, knowing that you'd be lining yourself up for a good round of lawyering?
autopr0n is like, down and stuff.
They'll probably hook up with an ISP in Asia someplace, where people haven't figured out the details about spam yet.
"It is a greater offense to steal men's labor, than their clothes"
I wish I could have been the one the one who pulled that plug...
Man, that must have felt good...
It probably went down something like this:
Lucky employee> "Bite my shiny metal ass, spammers!"
*sound of cat5 cable violently ripped out of a router*
"First lesson," Jon said. "Stick them with the pointy end."
Oh my god. This is sad. That someone would mod this up as funny... I never intended it that way. I know I post alot of goofy shit, but I was 110% deadly serious this time.
:(
And I don't find it funny at all.
I just accused our judicial system of being morally bankrupt and functionally impotent. Flamebait would have been more appropriate. Even troll. I think I'll go cry now.
34723984723 to go...
:), When I saw the net going commercial, I knew this would be bad, I said "well one day everybody will have a net connection and I'll have higher speed" and this is the good side, but some days I'd rather go back to my unix dialup account and have the feeling I had without the aggression of abusive emails, script kiddies and all that crap we have these days... ok this is a bit extreme but I'm sure you all get the idea.
There's one thing I don't get. We are tax payers, the people we elect are law-makers, they are paid to find solutions to common problems. They love passing laws. But WHY do they always have to go against the population and not work with them?
Get this: name me 10 subject that would get 99% approval among the population? heck even TAX CUT wouldn't get 99% because some people would be affraid of the system collapsing, etc etc... but SPAM? come on... if it's not 99% it's going to be 99.9%.
My question is: Why is the system so slow about it? why am I being spammed at a rate of 80 messages a day (including 20 that passes the "HIGH" setting in my hotmail account) I mean if I get spammed, I am sure senate representatives are getting spammed like hell too, I am sure it costs microsoft a LOT in bandwidth and storage and all to keep up with spam on their service (if they have a million of users that are like me receiving 20 spam for 1 valid email (and I am not joking) their system is totally wasted for nothing.
Why so much tolerance? why not blocking every higher class where the biggest spam machines comes from? the hell with the valid users; if they are cutted out, they will do something other than reading about it and sitting there, switch ISP or if it's another country with only one wire well they will do pressure to the higher instances to get their connection back. My way might be drastic, but I am FED UP with it, I've been waiting for 3 years for this problem to get solved and it's just getting worse.
It's like... remember like 5-10 years ago when you could post on usenet without getting any trouble? the worst thing that could happen to you was someone using flash.c against you?
We are barely starting to see something happening, but it's not by destroying the spam of ONE guy that you will scare the others off, this is going to get out of hands even worse, they will see how the legal system is bloated and exploit every single holes in it if they have to.
The system seems to protect the megacorporation more than little guys like you and me, but in this case, it would help BOTH sides, so why is it taking so long? cut asia off for a day, heck, DO SOMETHING. Ideas? heck , these guys are payed over twice my salary to come up with creative ideas, why don't they do their jobs and save me from taking the laws in my own hands?
--- Metamoderating abusive downgraders since my 300th post.
Here is the original /. story
Essentially, here's the lowdown: PaeTec entered an ISP agreement with Monsterhut. PaeTec was informed that Monsterhut was a marketing service that used opt-in service only.
PaeTec soon found out how wrong they were represented. But, before PaeTec could pull the plug, Monsterhut went out and got a restraining order under the basis that their business would be "irrepreably harmed" if their ISP service was shut off.
Monsterhut judge shopped. Found a judge that would grant their injunction.
The problem in court lied over ambiguous language of what the actual acceptable use policy would be. THe terms read something like complaints by 2% of the mails... but, since MonsterHut claims it sends out millions of mails, there certainly wouldn't be any way that PaeTec could get complaints in that number.
Thankfully, the judge saw through the bullshit in this case.
--You will rephrase your request for me to go to hell. Goto statements are not acceptable programming constructs
They probably just disabled their VLAN. Not as satisfying, but, generally, people who go ripping CAT-5 cable out of patch panels like a wild monkey don't last too long as network administrators.
There are some exceptions to this rule, however.
- A.P.
"Remember when the U.S. had a drug problem, and then we declared a War On Drugs, and now you can't buy drugs anymore?"
You know what would be a great way to deal with spammers?
Tie them up, and flog them, Inquisition-style. Every 10th hit or so, you'd stop, and tell them that this flogging isn't really torture, because they specifically asked for the flogging by sending out spam. Then you'd ask them if they'd like to "opt-out" of the flogging. When they said "yes," you could take it to mean "Yes, please flog me some more." Then you could get 5 more guys to come over and flog them too.
As a matter of fact, we could have an army of "Flog-bots" which would seek them out, and bring them to us.
Now that's poetic justice.
The more people and ISPs who start using software like Pyzor the more pointless spam becomes. It routes directly to a spam mailbox completely bypassing potential customers.
http://pyzor.sourceforge.net/
The more users it has, the more effective it becomes. Pyzor uses a central database of spam hashes to compare incoming mail against. If the hash of the body of the incoming mail matches an entry in the database then it's a spam. Discard it.
Sure someone will followup to say that they'll include random characters in each individual mail to change the hash values or they'll change parts of the message on each mail. Yes the authors are aware of this and the software already takes this into account.
Government of the people, by corporate executives, for corporate profits.
You overlook those of us with e-mail addresses old enough to pre-date spam. There was no reason to hide or mangle our addresses back then because there were no spam bots, and no spammers. Usenet was actually useful, and open relays were the norm, not the bane of proper netiquette. Hell, you gave your address out and expected people to contact you, not mass-mail ads. When you give your phone out to people, do you expect them to inundate you with telemarketing pitches? Of course not!
The point? Don't class those of us who get lots of spam because we choose to keep the addresses that we have had for the last 8 years with clueless newbies who don't know how to hide their addresses. We're aware we could use new addresses, but we've chosen to fight for the ones that we've got. All of my addresses are garbled, but goddamn fucking spammers in China, Argentina, and the US are still selling those "million-address" cds, with entries dating back for years, and some of them happen to contain my e-mails, culled from newsgroup postings, documentation, etc. As quickly as I whack-a-mole spammers, others pop us (most are now located in China, either for hosting, or originating - I'd solve 80% of my spam problem if I could just nuke China's connection to the outside world.
I fight hard to rid the 'net of these parasitic scum, and I resent the idea that it's MY fault that I'm getting spammed! Lay the blame where it lies - with the spammers!!!
Finally, regarding your comments regarding telemarketers, do you realize that there is a law against calling someone if they don't want to be called? Yet, under your logic, telemarketers should have the right to "market their product." And being irresponsible with one's address (or number.) You ignore random-dialing, which penalizes me for having a phone, and random-address discovery, where dictionaries of likely usernames are matched against domain names to generate addresses, without even having to run a spambot, or collect someone's data from a form.
Do you use your e-mail for business? Cause if you do, it's got to be a pain to notify all of your clients of your new address...