Spammer Sues SpamCop

wolfgang writes "Just wanted to send you word that notorious spammer Scott Richter, President of Email marketing firm OptinRealBig.com, has filed suit against Ironport, which runs anti-spam site Spamcop. According to Richter, Spamcop's initiatives have damaged the reputation of his company. Richter filed for $1 million in damages. A similar suit one year ago, filed by Eddy Marin and his Florida-based Emarketersamerica.org against Spamhaus, was thrown out of court last October." We've mentioned Richter before.

Comments

what a suprise

[bwraith]

it seems that now doing the right thing will get you sued, oh wait there's no suprise here.

Re:what a suprise

[QuantumRiff]

no, the threat of getting sued is often enough alone. Most small businesses can't afford the lawyers fees, they just fold up.. Its really a pathetic thing.. Big company (or rich person) sues a small company over something they wouldn't win. Small company knows they will win, but that it will cost $x amount of dollars for a lawyer, and the company can't afford to pay $x. So, they give in, and the evil people win, without having to go to court, because it costs a fortune to prove you are right. Why can't we go to a loser-pays system here in the US??

Re:what a suprise

[ePhil_One]

Don't forget the converse, where pathetic wacko sues company while representing himself. The company is forced to spend tens of thousands, if not hundreds of thousands, defending itself against the outrageous claims of the loon. All because he feels his hair dryer should have had a warning that it should not be used in the shower.

Sure, the company will win eventually, but that money and time is gone, and what would the company do with his trailer home anyway?

He CAN-SPAM... the law says so!

[LostCluster]

The law flat out says that he CAN SPAM. Say what you want about the guy, he's a big follower of truth in labeling....

Tthe key event is that when every you give your e-mail address to any site on the Internet you usually have the chance to opt in to getting commercial e-mail. Opt in with one of Richter's site, and just like the name of his company implies, you opt in REAL BIG to absolutely anybody who wants to Spam you via him. Oh, the dangers of leaving a pre-checked checkbox still checked when you submit the form.

Once you're caught in Richter's web, the only way out is to send an unsubscribe request email exactly the way that the CAN-SPAM says you should. Sure, responding to the unsubscribe link is a great way to get more spam from unethical spammers... but it's the only way to stop getting spam from a compling-to-the-letter-of-the-law spammer. He's untouchable, he'll plead guilty as charged to being scum... but he's breaking no laws.

SpamCop's free to spread its low opinion about OptInRealBig, but they have to be very careful they keep what they say in opinion territory. If SpamCop's willing to publish nameless acusations that OptInRealBig is sending e-mail to people who didn't really opt in, they'd better be sure those people have their facts straight. Richter's counter is that all these people really did opt in, they just don't remember when they did so. If they'd simply provide their e-mail address, Richter could likely tell them at what site and when they made their mistake of signaling that they were opting in, and if they've just send a proper e-mail to his unsubscribe address, he'll gladly unsubscribe them. But since they won't disclose their address, he can't do much for them.

Re:He CAN-SPAM... the law says so!

[tsg]

Opt in with one of Richter's site, and just like the name of his company implies, you opt in REAL BIG to absolutely anybody who wants to Spam you via him. Oh, the dangers of leaving a pre-checked checkbox still checked when you submit the form.

A checkbox asking for commercial email that is checked by default is opt out, not opt in. The user still has to take action to not get spam.

Do you want spam from us? [default: yes]
Do you not want spam from us? [default: no]

They both say "we will send you spam unless you tell us otherwise". Both are opt out.

Re:He CAN-SPAM... the law says so!

[cmowire]

You certianly have an interesting view of things.

In fact, the biggest problem is that the entire spam industry has made next to no good-faith efforts to legitimize itself. OptInRealBig isn't helping.

I have found, based on experiments on my wepbage (explicitly denied *all* spiders by a robots.txt file, unique email address every time it is spidered, etc) that spammers do still spider addresses, opting out does not work, even if the site claims that they comply with YOU-CAN-SPAM. They all claim that I "opted in" by submitting my name to a "FFA" site or crap like that in the bottom of the message.

I did, at one point, get some information about how a spammer got my address. They admitted that they had purchased it from somebody else, who then claimed that I allowed them to because I forgot to click a checkbox on a third company's website several years prior, but wouldn't say who sold it.

Which, if you think about it, is bunk. If permission is that vaccuous, then giving one site permission, you are really giving every single spammer permission, because they can sell said permission freely. And they don't even need to drop you. If company A sells permission to company B and C, if OptInRealBig has purchased permission from company B and you opt out, they can simply obtain permission from company C and continue to spam. So it's pretty clear that YOU-CAN-SPAM isn't going to work, even if they manage to prosecute a few spammers here and there.

See, the big thing here is that SpamCop does not really need to concern itself with YOU-CAN-SPAM in the slightest. YOU-CAN-SPAM uses the term "Spam" but does not create a legal definition of it. Thus, SpamCop can create their own definition of what spam is, and list mailers that violate that. This is similar to how the BBB creates a list of companies who violate their definition of good business. So there's nothing "legally" wrong with creating a list of mailers who buy lists from others and mass-mail them. You can even call it a list of "spammers" and sell it. Which is what this case is really about. As long as SpamCop sticks to their definition of what spam is, there's no real case that can be made.

How can he hope to win this suit?

[petard]

Isn't that a lot like suing the credit reporting companies because you went bankrupt and they put you on their "do not extend credit" list? You could call it "tortious interference" with your ability to get a credit card or a mortgage.

I think that's been tried many times and hasn't worked. Why would this?

This one makes me laugh and cry at the same time.

[The I Shing]

I don't think I've ever seen a more obvious example of a SLAPP suit.

The bright spot for me is that SpamCop must be putting some kind of dent in Richter's business if Richter feels like he's got to sue to make SpamCop go away.

Funny how the tricky guys are the ones who talk about using the legal system to "send a message" to anyone who might defy them.

PanIP, the RIAA, and Scott Richter all seem to be cut from the same cloth. Their message seems to be we may not be entitled to a dime but don't you dare defy us, or we'll press this lawsuit until you're bankrupt.

Just lovely having people like this around.

One quote from the article that made me laugh out loud was this one:

He said that he already rejected an offer from Spitzer to settle the case for $100,000.

Oh, yeah, I bet. If Spitzer wanted to settle for $100,000 and Richter turned him down, Spitzer would've dropped it, don't you think?

The other quote that gave me quite a chuckle was, "Messing with us is a big mistake." Oh, yeah, nothing hurts a state attorney general's re-election bid worse than the ill will of a notorious and unrepentant spammer.

Re:BULL-FUCKING-SHIT!

[LostCluster]

That address STILL gets Richter's spam-crap. Just like every other spammer out there, he's a liar, a thief (ripping off the people paying him to advertise), and deserves to be gotten rid of.

Are you sure it's really Richter's spam-crap you're getting, rather than somebody else's spam-crap? You've got to be sure you're accusing the right people when you go accusing...

So,...

[Duhavid]

Collect the facts you have, make darned sure they are all 100%, hand them to SpamCop. They use it in this suit to disprove the "they just dont remember" statement ( 1 counterexample disproves a claim... ). Be ready to testify.

Re:Subject of legality.

[YankeeInExile]

Well, not quite ...

• The supreme court has made a distinction between normal speech and "commercial" speech, and that the latter may be limited in the public interest
• SPAM has nothing to do with freedom of speech. If Scott wants to stand on a street-corner and shout his views on why his advertising should be embraced by all users to all passers by, he is invited to do so.

People - the constitution regulates what government can do -- not what private individuals (or /. editors) can do.

Re:Where's my Opt-Out?

[LostCluster]

That seems to be a valid contact address, but that's not their Opt-Out address.

The only place they have to publish their Opt-Out intructions is at the end of every e-mail they send. Can't tell the difference between Richter's e-mails and the other not-law-compliant spamemrs? That's your problem...

Yep, opting in is so easy you can do it without realizing you did. Opting out is so hard you have to strugle to get it done and will often fall into the trap of verifying that you read spam e-mail.

Oh, and you kill your spam before you read it? Oh well, you'll also end up killing the ever elusive opt-out info.

Somehow, this CAN-SPAM law isn't quite what we wanted in an anti-spam law...

Re:BULL-FUCKING-SHIT!

[jdreed1024]

I keep a few email addresses around on various sites. One of them is literally present on only ONE site in the world, and it's in white text on a white background, with a disclaimer "this email address is a spam honeypot, don't send email to it" in text right next to it.

That address STILL gets Richter's spam-crap. Just like every other spammer out there, he's a liar, a thief (ripping off the people paying him to advertise), and deserves to be gotten rid of.

Good. Then write up an affidavit, and send it to the Spamcop folks to help them in their lawsuit. Seriously. Mentioning it on /. won't do anything.

Because unless SpamCop can prove that people who never opted in actually got mail from this guy, he might just win, thanks to the wonderful CAN-SPAM act and the arguments laid out in the parent post. And then we're all screwed. And don't say it can't happen.

Boiler-plate response:

[JeanPaulBob]

In america, our first ammendment (Freedom of speech) rights SHOULD protect spammers.

Email is closer to a fax than postal mail. Spam is no different from faxing unsolicited advertisement flyers. It can incur significant costs on the recipient. Thus, it should not be protected.

Next?

Caselaw

[Xhad]

See Telemarketers vs. The Do Not Call Registry. Advertising commercial products in an invasive manner is not protected speech and shouldn't be.

Even if we interpret free speech to mean "say whatever you want", that doesn't mean I have to let you come into my house to say it.

You're missing another converse

[billstewart]

Pathetic wacko sues company while representing himself, or using one of those cheapo ambulance-chaser lawyers who advertise on late night cable TV channels, because he feels his hair dryer shouldn't have exploded when simply plugged into the wall 10 feet away from the shower, or because he feels that emitting toxic carcinogens from burning plastic is not usual behaviour for a minor appliance. And he loses, because he doesn't have adequate legal representation to go against the company's $5million legal staff.

In a loser-always-pays system, if he sues them and fails, he loses big, so he can't risk suing them even when he's right, because he doesn't have the resources to be 99% sure of beating them, and he knows that they can generate near-infinite legal costs that he'll have to cover. This seriously chills lawsuits by little guys against big companies.

In today's system in the US, he can risk suing them, because if he does at least a halfway-adequate job of making his case, the judge probably won't award legal costs to the winner. On the other hand, if he does try a case that's obviously pretty bogus and frivolous, he'll probably have to pay their legal costs, unless his case is _so_ bogus that it gets thrown out very early in the process, long before getting to trial.