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OptInRealBig Wins Restraining Order On SpamCop
arikb writes "Some online newspapers are reporting that the infamous Scott Richter and his company OptInRealBig won a temporary restraining order against SpamCop. The TRO prevents SpamCop from sending complaints about OIRB to their provider or removing email addresses from the complaints it receives which regard OIRB. I think we will rue this day for years to come."
Update: 05/12 16:43 GMT by T : The Ultimate Fartkno writes "HillsCap, a fed-up SpamCop user, is now organizing a class-action lawsuit to be brought against Richter and Opt-In. At least 1,000 signatures are needed, so tell your friends!"
Video. Wonder how long that poor schmuck's server will last, but it's not on the Comedy Central page for the Daily Show that I can see.
Weird, I don't usually see analogies on Slashdot that make sense. /applause
:P
But anyway, that's only one aspect of it. Richter is also going after them for forwarding complaints to OIRB's ISP instead of the company directly. It's not that people use their blacklists (although that's part of it), it's that SpamCop is actively trying to get ISPs to shut him down. Presumably for a violation of TOS or whatnot. Richter claims that it's unlawfully costing him business. I know, I know, he's full of #$@$, I am just stating the facts.
Auto-reply to ACs: "Truly, you have a dizzying intellect."
Opt In Real Big claims to be an opt-in only company. However, they operate through third parties with no checks in place to ensure the third parties are using opt-in lists, paying those parties based on how many people click their links. Making it a <fingerquote> policy </fingerquote> gives them plausible deniability up until people start laying down evidence that they're full of shit.
"We're not going after IronPort because of their blocking. We're going after IronPort for the harassment," [OIRB's Scott Richter] said. "We're going to go after many antispam groups."
I think they are going after because of their blocking, but their suit does not complain about the blocking. They are going after anonymous e-mail complaints and sending e-mail to the ISP. Your argument does not address the issue at hand.
This is the greatest checklist ever made. I owe the creator a donut and a big cup of coffee.
--
The parent post advocates a
( ) technical ( ) legislative (X) market-based ( ) vigilante
approach to fighting spam. Your idea will not work. Here is why it won't work.
(One or more of the following may apply to your particular idea, and it may
have other flaws which used to vary from state to state before a bad federal
law was passed.)
( ) Spammers can easily use it to harvest email addresses
( ) Mailing lists and other legitimate email uses would be affected
(X) No one will be able to find the guy or collect the money
( ) It is defenseless against brute force attacks
(X) It will stop spam for two weeks and then we'll be stuck with it
(X) Users of email will not put up with it
( ) Microsoft will not put up with it
( ) The police will not put up with it
(X) Requires too much cooperation from spammers
(x) Requires immediate total cooperation from everybody at once
( ) Many email users cannot afford to lose business or alienate potential
employers
( ) Spammers don't care about invalid addresses in their lists
( ) Anyone could anonymously destroy anyone else's career or business
Specifically, your plan fails to account for
( ) Laws expressly prohibiting it
(x) Lack of centrally controlling authority for email
(X) Open relays in foreign countries
( ) Ease of searching tiny alphanumeric address space of all email addresses
( ) Asshats
( ) Jurisdictional problems
(X) Unpopularity of weird new taxes
(X) Public reluctance to accept weird new forms of money
( ) Huge existing software investment in SMTP
( ) Susceptibility of protocols other than SMTP to attack
( ) Willingness of users to install OS patches received by email
(X) Armies of worm riddled broadband-connected Windows boxes
(X) Eternal arms race involved in all filtering approaches
( ) Extreme profitability of spam
( ) Joe jobs and/or identity theft
( ) Technically illiterate politicians
( ) Extreme stupidity on the part of people who do business with spammers
(x) Dishonesty on the part of spammers themselves
( ) Bandwidth costs that are unaffected by client filtering
( ) Outlook
and the following philosophical objections may also apply:
( ) Ideas similar to yours are easy to come up with, yet none have ever been
shown practical
( ) Any scheme based on opt-out is unacceptable
( ) SMTP headers should not be the subject of legislation
( ) Blacklists suck
( ) Whitelists suck
( ) We should be able to talk about Viagra without being censored
( ) Countermeasures should not involve wire fraud or credit card fraud
( ) Countermeasures should not involve sabotage of public networks
( ) Countermeasures must work if phased in gradually
(X) Sending email should be free
( ) Why should we have to trust you and your servers?
( ) Incompatiblity with open source or open source licenses
( ) Feel-good measures do nothing to solve the problem
( ) Temporary/one-time email addresses are cumbersome
( ) I don't want the government reading my email
( ) Killing them that way is not slow and painful enough
Furthermore, this is what I think about you:
(x) Sorry dude, but I don't think it would work.
( ) This is a stupid idea, and you're a stupid person for suggesting it.
Auto-reply to ACs: "Truly, you have a dizzying intellect."
Right, but that does not automatically mean that SpamCop is doing anything wrong. The Can Spam act is essentially irrelevant here, because the issue isn't whether spamming is legal, but whether spamming was in breach of the contract with the spammer's ISP. The issue is that SpamCop is ratting out the spammer to his ISP for spamming, and that ISP pulls the spammer's plug. If the ISP has written into its contract with the spammer "no spamming" and he/she/it spams, then that is totally legal. The argument here that SpamCop is interfering with the spammer's business unjustly (which most of us think it isn't). The little razzle-dazzle about "we're complying with the can spam act!" whine by the spammer is irrelevant.
As an analogy: If we're neighbors in an apartment building that forbids pets, and I ratted you out to the landlord because you had a few cats, you won't be getting into trouble with thelandlord because owning cats is illegal... you'll be getting into trouble with the landlord because you've violated your lease.
What the spammer is trying to say here is that under the Can Spam Act, you cannot go directly to the ISP with complaints. You must complain to him first. IANAL, but that sounds like bullshit. If SpamCop was out of the picture and I complained to the ISP directly myself, would I get sued? I don't believe there's any way you could restrain my right of free speech to inform the ISP that his client is in breach of his contract. I also don;t think the ISP would be required to give up my identity to the spammer. As the article said, there isn't a legal requirement to be faced with your accusers in cases such as this.
Whether or not Spamming is legal is not actually the point. Any private individual has the right to hold opinions on the activities of another person or company.
:-)
The scummers, erm, spammers, are using the argument that blocking these emails is costing them business.
I would use the counter argument, that people (And this includes ISP's) choose *not* to recieve these emails because they are costing them time and money, and the spammers are not recompensing them.
You may have the right to show me advertising, but you dont have the right to make me pay for you to do it. One of the reasons i dumped my old Dial up account is the minute or so wait while i downloaded scum.. erm.. spam... erm... marketing emails during which time the clock was ticking, but i coudnt use my internet connection.
There are still quite a number of places in the world where people still pay for internet by the minute. (Not me any more fortunately)
So, if any of your spammers are out there reading this message, Feel free to try to sue me for accusing you of the following: you are BOTTOM SUCKING LEECHES who survive by MAKING EVERYONES INTERNET CONNECTIONS THAT MORE UNPLEASANT TO USE. I not only hoping you loose the case against SPAMCOP, AOS, MICROSOFT et al, i hope they NAIL YOUR SCUMMY LITTLE COMPANIES TO THE WALL, and prove to everyone just what MORONIC IDIOTS you are in practicing this BARELY LEGAL "marketing" activity that would be BANNED IN VIRTUALLY ANY OTHER MEDIA.
Hmm, theraputic, must do that more often
The SpamCop we are talking about here is not spamcop.com (which this /. article links to), it is spamcop.net.
Hmm, what idiot provides this guys bandwidth?
From the optinrealbig.com web site:
Contact us via e-mail: info@optinbig.com
or phone: (303) 464-8164
OptInRealBig.com, LLC
1333 W 120th Ave Suite 101
Westminster, CO 80234
I think we should all give them a call or send them a friendly letter letting them know what we think of their "service".
It's good to use your head, but not as a battering ram.
And the problem is non-existant. Spamcop replaces the real email address with a randomly generated prefix - a temporary email address - thereby protecting the client. ISPs can reply to that email address which returns a response back to the original complainant. So what's stopping him from doing that - nothing! (Except the volume of complaints - but then that's his fault for not running a proper confirmed opt-in approach).
And it does work. I have replies from ISPs confirming removal of spammers / disinfection of mail relay trojans - they have no problem replying to the email address as created by Spamcop.
Well, consider this scenario:
All's true that is mistrusted
No, the system works like this: you ask the complaintant (who SpamCop easily allows you to contact) what his email address is so you can remove it from the list. You do so, and SpamCop stops blacklisting you.
Except, in reality, you are probably a spammer (therefore by definition a criminal) so you just ignore complaints anyway.
I have an archive of over 10,000 spams that I personally have recieved despite never having signed up for any. I turn away around 400 daily using SpamAssassin Bayes and various blacklists. My address was harvested from InterNIC (along with all the other domain admins) by spammers without anyone's permission.
SpamCop provides a service that people like myself can CHOOSE to take advantage of. You can easily find an ISP who does not use it. SpamCop has absolutely NO ability to "stop all bulk emailing" as you claim (god, I wish they did, though!).
If you want to take away people's right to choose whether to use SpamCop or not, you are just another amoral spam whore. If you don't think SpamCop has a right to publish lists however they choose, well, you're tempting Godwin's law.
The TRO has already been dissolved.
From dissolution of ex parte TRO:
On May 10, 2004 the Court issued a temporary restraining order (the "TRO") against defendant
Ironport Systems, Inc. dba SPAMCOP.NET, Inc. ("Defendant") on behalf of OPTINREALBIG.COM,
LLC ("Plaintiff"). Defendant has objected to the TRO and sufficiently explained why its objection came
after the issuance of the Court's order. It was not through gamesmanship on the part of Defendant, but
rather issues of timing. The Court's order and Defendant's opposition crossed each other in the e-filing
system.
Having read and considered Defendant's opposition only for the purpose of determining whether or
not to maintain the TRO, the Court finds that the legal issues raised are more complicated than they
originally appeared and that the Court has a number of questions regarding the facts. Because of this, the
Court finds that the balance of hardships and the interests of justice favor dissolution of the TRO and
expediting the hearing on the preliminary injunction. This is to give both parties a full and fair opportunity to
be heard on the issues, to give the Court sufficient time to deliberate on these issues, and to issue a
judgment on the merits expeditiously so that the prevailing party shall obtain the relief necessary to prevent
irreparable harm.
United States District Court
For the Northern District of California
The Court wishes to clarify that the TRO was not a determination of the merits of this case. The
Supreme Court "has repeatedly held that the basis for injunctive relief in the federal courts has always been
irreparable injury and the inadequacy of legal remedies." Weinberger v. Romeo-Barcelo , 456 U.S. 305,
312 (1982). The limited record usually available on such motions renders a final decision on the merits
inappropriate. Brown v. Chote, 411 U.S. 452, 456 (1973); see also, Paragould Music Co. v. City of
Paragould , 738 F.2d 973, 975 (8th Cir.1984); Laurenzo v. Mississippi High School Activities Ass'n, 708
F.2d 1038, 1043 (5th Cir.1983) (student who challenged a rule which made him ineligible to play baseball
not a prevailing party because finding on the merits was not required for the issuance of an injunction
pending appeal); Bly v. McLeod, 605 F.2d 134, 137 (4th Cir.1979), cert. denied, 445 U.S. 928, 100
S.Ct. 1315 (1980) (TRO allowed plaintiffs to vote on absentee ballots but was in no way a determination
on the merits); cf Nitz v. Otte, 87 F.3d 1321 (9th Cir. 1996) (unpublished) (noting that the issuance of a
TRO did not constitute a proceeding of substance on the merit).
In contrast, a federal proceeding may be deemed to have passed beyond the " embryonic stage" if
the federal court has conducted extensive hearings on a motion for a preliminary injunction. Adultworld
Bookstore v. City of Fresno, 758 F.2d 1348, 1350-51 (9th Cir.1985).
The Court is aware, however, that Federal Rule of Civil Procedure 65(b) provides that a TRO may
issue ex parte to preserve the status quo. Having reviewed Defendant's opposition and considered the
facts brought forward by it, the Court questions whether the terms of the TRO actually preserved the status
quo or altered it by requiring Defendant to take proactive steps to limit the recipients of the complaints and
to list the names of those complaining. Because in such situations, the Court must be "extremely cautious,"
Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D.Cal. 1995), the
Court dissolves the TRO and expedites the hearing on the preliminary injunction.
For the foregoing reasons,
IT IS HEREBY ORDERED THAT the Temporary Restraining Order of May 10, 2004 is
DISSOLVED. Plaintiff shall serve and file a motion for preliminary injunction no later than May 12, 2004.
Defendant shall serve its reply no later than May 13, 2004. Plaintiff shall serve and file a reply no later than
May 14, 2004. The parties shall appear before the Court on
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