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Michigander Beats Spammer With "Junk Fax" Law
TastyWords writes "According to this link, it's possible to apply the 'junk fax law' to successfully sue a spammer in small claims court. For those who are stuck in states which either have worthless (or near-worthless) anti-spam legislation, this creative approach of the law presents a creative method of turning the table on those who choose to spam first and ask questions later. All of the details are available for enterprising anti-spammers!" Update: 02/25 00:30 GMT by T : OK, so it's Michigander, not Michiganian. Too long as a Texon, Marylandite and Tennesseenaut.
I seem to remember seeing Ralksy's address somewhere (wink, nudge)... he's a resident of Michigan. Now we just need every citizen of the state to sue him for a couple hundred bucks each.
General Geekery
"Standard" is one of the most abused words on Earth. You can use it to attempt to convince anyone of anything:
A new mother asks: "Why did you chop off some of the skin on my son's penis?" The doctor answers: "Oh, that's just standard practice, nothing for you to worry about."
--sex
Very popular slashdot journal for adul
The definition of a fax machine under the TCPA does cover a computer with faxmodem and printer. There are many lawyers who argue that it is not intended to be used that way and the courts will not support it. I have been unable to find any binding case (ruled on by an appeals court) in the country that has said a computer with faxmodem and printer does not qualify as a fax machine. The only case that comes close is one that argues over jurisdiction in state of federal court. The appeals court mentioned that it was spam in a footnote, but took no action. As this was an appeals of a summary judgment, the court had the ability to dismiss on the issue of spam TCPA not applying to spam, but did not do so.
More information is at http://www.phillipsnizer.com/int-art111.htm
Fight Spammers!
Example: Don't sue corporations in Delaware; Delaware sells itself as corporation-friendly. Their laws are set up to make incorporation easy and make all things nice for corporations. Just have a look-see at the Central Delaware Chamber of Commerce site before you disagree. I set up two corporations in DE myself.
This article is about a guy that used a punitive damage law to punish a spammer. Hardly and eye-for-an-eye. That would be spamming a spammer. See a slashdot article from a couple of months ago for that.
1. That Ralsky fellow, him what allegedly got millions by spamming, lives in Michigan. 2. So do many Slashdotters. Hmm....
Under United States law, it is unlawful "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement" to any "equipment which has the capacity (A) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper." " Seems like this would be a nice source of spare income if it could be done reliably, but do I have to use a modem?
No, you just need to have the capacity to.
You file where YOU are, which is where the crime took place.
Experts disagree.
(From the first link)
"You sue an Illinois citizen in an Illinois state court for breach of contract. It doesn't matter where you live, or where the events leading up to the lawsuit took place because an Illinois state court has personal jurisdiction over all citizens of Illinois."
This makes sense. Otherwise it would be incredibly unfair to defendents, who would have to travel to the location of the plaintiff on the plaintiff's whim.
"...always new atoms but always doing the same dance, remembering what the dance was yesterday." -Richard Feynman
read the law.
Section 227.b.1
Prohibitions
It shall be unlawful for any person within the United States -- to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;
Doesn't say anything about the fax having to come over a phone line, just that it has to go to a telephone facsimile machine.
Looks like cable modem users can sue. Luckily I have about 10k spams saved, I'm sure I can find some for local florida companies, then I'll go buy myself a faxmodem !
Just because an IP address is understood to be the internet equivalent of a phone number does *NOT* make it so in the legal sense.
Again, *BE CAREFUL* here - for instance, there's laws against unattended phones re-dialing more than a certain number of times if there's no answer.
If IP addresses were legally phone numbers, your mail system would probably be breaking the law every time it re-tried delivery of mail to a host that's down.
It's this sort of "unintended consequence" that makes writing laws so difficult.
Um... actually the idea of 'an eye for an eye' and 'a tooth for a tooth' was pretty much taken straight out of the Code of Hammurabi.
Check out paragraphs 196 and 200, specifically.
The Code of Hammurabi is the oldest known written legal code, older than the Hebrew law which you are attempting to contrast it with, and is considered to be the inspiration for most legal codes which followed it.
The Jews didn't invent the principle, they inherited it from the Babylonians.
Living better through chemicals
Asking you to sign a contract when they lost in court, is pretty goddamned sleazy. I'd suggest you send a copy of that to the court, and ask the court to bitch-slap Sears and their law firm for that.
You don't have to enter into any kind of agreement with someone who owes you money pursuant to a judgement in order to collect what they owe you.
BTW, Sears has a long history of sleazy shyster tricks. Look up what they did to the inventor of the socket wrench sometime. When I want tools, I go to snap-on.
-jcr
The only title of honor that a tyrant can grant is "Enemy of the State."
Many states will not honor small claims suits if it can be determined that the venue is improper. In California, you can go after somebody if you have a REALLY good reason outside of state lines.
It's why that pet supplies guy can't legally sue somebody outside of his area. You file an improper venue plea and they effectively dismiss the case with prejudice.
This sig no verb.
AFAIR, California unsolicited fax lawsuits are fruitless because California "opted-out" of the federal law.
That is, California has their own implementation of the fax law, which requires an removal number and removal upon request. So junk faxers can do so until you notify them, then they sell your fax number to the next guy.
I tried every decent and legal way I could think of to resolve the issue w/the business before I rented the chicken suit
Here's how to find out...
In Soviet Rush, today's Tom Sawyer gets high on you.
INAL, but one of the voices in my head is..
In most states, small-claims decisions can not be appealed. Period.
Jurisdiction and venue are both easier and harder than you paint them. There are entire law courses on things like jurisdiction.
Then there is subject matter jurisdiction versus personal jurisdiction, and the constitutional limits on jurisdiction versus the prudential rules of venue. If you're going to small claims court you hardly have to worry about all that. The pivotal issue is fairness. Sears was "present" locally, both because they had a store and because they inflicted an injury on the plaintiff in his home jurisdiction (imagine they'd sent him a bomb -- no one would quibble that it was "unfair" to drag Sears to the plaintiff, and the prosecutor). The small claims court has subject matter jurisdiction under the federal junk fax law, meaning they were the right place to hear this sort of case. And so on.
The bomb example is a little unsubtle, but an illegal email is just a milder example of the same sort of civil wrong. It would be quite unfair to force the plaintiff to go to whatever rock the defendant was lurking under to litigate a $500 claim.
If you really want to bend you mind, sometimes a place is appropriate for the lawsuit to be heard, but the law of another jurisdiction is applied (choice of law). Then you may find yourself applying a mix of local procedural law and foreign substantive law.
That, and the fact that lawyers are generally not allowed in small claims court (unless one of the litigants just happens to BE a lawyer, but "Sears & Roebuck" is not a lawyer).
The problem is that 47 USC 227(a)(2) clauses (A) and (B) are basically legalistic wrapping saying "a fax machine is something that sends and receives faxes".
;)
If a fax machine is receiving something, the something being received is a fax.
If you say that your comupter receiving e-mail is receiving a fax, then e-mail is a fax. Trying to claim otherwise blows your argument - if it's not a fax, then it isn't receivable as a fax transmission, and whether your computer is a fax machine is irrelevant (notice that making a *voice* call to a fax machine to sell things is totally legal, if useless....)
The worst part is that in order to make it stick at all, you have to take a *very* lenient interpretation of "recieving a fax".
For example - the spammer can *easily* wiggle out if he sends to your mail server rather than directly to your home computer - because the mail server doesn't "transcribe onto paper" as a normal integral part of receiving e-mail.
And the legal argument is dead meat otherwise - focusing on the part where your computer with the printer downloads the mail is a non-starter, as that's not an "unsolicited" transmission. You called the ISP and asked to download the mail...
And by the time you stretch the definitions enough to make it stick, the camel has gotten a lot more than just his nose into the tent.
My name is Mark Reinertson, I'm the guy. If you want to know more about this lawsuit and how I won, please email me at spamsuit@yahoo.com Thank you.
This thread is a little old, but thought I'd add my 2 cents.
Quoting from "Business Law and the Regulatory Environment" by Mallor, Barnes, Bowers, Phillips, and Langvardt:
"In addition, many states have enacted 'long-arm' statutes that give their courts in personam jurisdiction over certain out-of-state defendants. Under these statutes, nonresident individuals and businesses become subject to the state's jurisdiction by, for example, doing business within the state, contracting to supply goods or services within the state, or committing a tort (civil wrong) within the state."
You could argue that this is the case here, so if your state has such a statute, you're good to go.