Spammers Sue Spamee

sebFlyte writes "In an interesting take on the law, some (alleged) spammers are suing some poor chap who got them blocked by ISPs due to the fact they kept sending him spam. According to Spamhaus the company doing the suing is on their books as spammer, and also as a spyware company... If this case goes the wrong way, things could get very sticky for anyone wanting to report spam."

Comments

Can Spam Act as defense

[fembots]

This is a serious problem. Lawyers/spammers are now citing CSA, and as long as they're following that ACT, it will be legal.

However, it doesn't matter if spamming is legal or otherwise, this is just another example of rich people's law.

If this spammer is doing reasonably well, he might just have enough money to drag on. This will have a big impact on the victims, because even if you're rightfully entitled to complain about a spammer, you would now have a second thought if you have enough money to defend yourself for few months, even if the outcome is in your favour.

On a side note, the spamee, Jay Stuler is appealing for help from the public in fighting the suit and has set up a PayPal account to pay for his legal fees and is asking for donations. Maybe a bit of "email campaign" asking recipients to donate $5 and pass the email to 5 friends? :)

Re:Can Spam Act as defense

[Senjutsu]

You cannot get sued for complaining.

As this case illustrates, you can be sued for anything. Sure, you probably won't lose, but can you afford to take the case far enough to be sure? Most people can't.

Re:Can Spam Act as defense

[KiltedKnight]

If you can't lose, you should move immediately for the case to be dismissed as a frivolous lawsuit. If you have a reasonably wise and intelligent judge hearing the case, he'll look at it, agree, and throw it out. The judge would then warn the lawyer about bringing up frivolous lawsuits, potentially fining him for doing so.

Perhaps he should look for a way to counter-sue on those grounds. He followed the law, made a simple request based on the TOS of the ISP, and he's being harassed with a frivolous lawsuit intended to seek damages for something he is not liable for.

Re:Can Spam Act as defense

[BitterOak]

Seems like a million lawyers would jump at a countersuit on this one.

Problem is, many states don't have laws against frivilous lawsuits, so there may be no basis for a countersuit, especially if the spam itself were not illegal. This is why we need tort reform like Newt Gingrich was touting in his contract with America in which there'd be a loser pays system for lawsuits. Sadly, his ideas have been largely forgotten.

Re:Can Spam Act as defense

[Dashing Leech]

"you should move immediately for the case to be dismissed as a frivolous lawsuit"

The problem is that just to get to the point that you can ask for the lawsuit to be dismissed will probably cost you thousands of dollars. Just to sit down with a lawyer to look over the suit in the first case might cost you a few hundred. Even a few thousand dollars can break the bank for some people.

There should be a system (perhaps there is, and someone can point me to it) whereby an individual can ask for a case to be reviewed before even talking to a lawyer. This is just taking schoolyard bullying to a higher level -- if you fight back it will only get worse for you even if you eventually win by getting the bully in trouble.

Re:Can Spam Act as defense

[MightyMartian]

Most folks aren't lawyers, and most lawyers cost $$$. So there's going to be at least several hundred dollars spent getting a judge to dismiss the lawsuit. I don't know that much about legal matters, but isn't it true that if you want to recoupe legal fees, you're going to have to countersue?

Re:Can Spam Act as defense

[TFGeditor]

"This is why we need tort reform like Newt Gingrich was touting in his contract with America in which there'd be a loser pays system for lawsuits."

Yea, amen, and halleluja. Remove the incentive for a big win even if they lose, and the "necessary evils" we call "lawyers" will spen more time golfing than harassing over baseless claims.

Even better, make lawyers who file claims determined frivilous subject to disbarment. To make it "fair," create civil grand juries to assess case merits before it ever sees a court room.

Re:Can Spam Act as defense

[Anonymous Coward]

> There should be a system (perhaps there is, and someone can point me to it) whereby an individual can ask for a case to be reviewed before even talking to a lawyer.

In federal court you can move to dismiss before doing _anything_ in response to a complaint with a Rule 12(b)(6) motion for failure to state a claim on which relief can be granted. It's something you could even research on the internet and file yourself if you can't afford a lawyer. In addition, you can move for Rule 11 sanctions, which can be awarded when the complaint is frivolous, as it appears to be in this case. Rule 11 requires that any lawyer filing a complaint is thereby certifying that he has investigated the facts and believes that the complaint has a reasonable basis in fact. You won't be disbarred for filing a frivolous lawsuit, but you can be fined large amounts. Although his website pictures reveal that the case is in New Hampshire superior court, there is probably a similar system of civil procedure in New Hamsphire. Personally I found the spammer's complaint laughable. First of all, they spelled "Tortious" wrong in large bold type as "Tortuous." Second, truth is a defense to any claim of defamation. In any event he appears to be a graduate student at a college, so he is judgment-proof. The only reason they are filing the case is, as you said, taking bullying to a higher level. Although he should have thought twice about calling the spammers "criminals" or a criminal gang. This type of case seems to be open and shut-- not a lot of factual issues, only one defendant involved, etc. In other words, cheap. Moreover, this is a case the EFF should take. Personally I'll donate some cash to his defense fund just because.

Re:Can Spam Act as defense

[ShamusYoung]

This is a saying we used to have at my company: "Anyone can sue you at anytime, for anything."

It is true, and while they may not even have a viable case against you, they can file motions and demand documents and force you into court to defend yourself. They bury you in legal paperwork and wait you out. The goal of such cases is not to win, but to get the other side to stop doing something they don't like. If the defendant can't afford the legal fees required to defend themselves, they have no choice but to give in and stop doing whatever it is that the other party doesn't like.

It is a very thugish abuse of the system, and AFAIK, there is no way to defend against it if you don't have the cash.

Re:Can Spam Act as defense

[Anonymous Coward]

Current system:
- Evil rich spammer sues poor complainer.
- Defendant spends a few thousand on a lawyer, all they can afford.
- Defendant loses because evil rich spammer can afford better lawyers with more paralegals to research and argue the case.
- Defendant is out a few thousand plus penalties.

Loser pays:
- Evil rich spammer sues poor complainer.
- Defendant spends a few thousand on a lawyer, all they can afford.
- Defendant loses because evil rich spammer can afford better lawyers with more paralegals to research and argue the case.
- Defendant is out a few thousand, plus the penalties, plus the entire expense of the spammer's legal dream team.

How did the loser-pays system help the defendant again? In fact, this system would be encouraging the spammer, because they've shifted the expense of the legal "profit center" over to the defendant. In the current system, they at least have to pay some money up front. In the second, their profit margin has gone way up.

You're making the assumption that justice -- as seen by you -- will always prevail, and the losers always deserve whatever they get.

Re:Can Spam Act as defense

[Borderlinebass]

If a "loser pays" sysem is implemented, it's a disincentive against any individual who might sue a large corporation, a wealthy person (Such as a doctor.) or even the goverment.

What good is a system where someone who has been wronged and disadvantaged, who isn't gaurunteed to win, perhaps because the grounds the suit is based on is highly technical, like say medive, is chancing being injured further by seeking redress? That's a ridiculous tenent to base a justice system on, and it's why such ideas are routinely rejected, again and again.

As for the rest of it, yes, sanctioning lawyers that repeatedly bring frivilous lawsuits would be a good thing. But that already occurs.

Does this case hold?

[oskard]

If anything, they should sue the ISP, not the individual. Props to the ISP though for listening to the guy.

Somebody do something!

[Anonymous Coward]

Hack these guys, bomb them or something. Of course, AFTER legal battles are found to be futile.

If the law turns against the people... then it's time for people to turn against the law.

tthis is convoluted

[Wansu]

No wonder people are saying to heck with the internet. Spam, virii, worms, spyware, goofy OS problems ... My dad asked me, "What damn good is it?" I see his point.

Soo... let me get this straight...

[popo]

If Person-A tells Company-B to do something which may or may not be legal to Company-C...

And Company-B goes ahead and does it.

Isn't Company-B the liable party here?

e.g. -- If I tell my Landlord to kick out my loud upstairs neighbor -- and for some reason he complies and *does* it.... As far as I know my neighbor's furious, my landlord's getting sued and I'm nothing other than stoked.

Anyone?

Re:Soo... let me get this straight...

[Anonymous Coward]

As far as I can tell from the article, the suit is more like:
You told your landlord that your loud upstairs neighbor was running a methlab up there. The landlord then kicked your neighbor out. Your neighbor is now claiming that you made up the part about the methlab and not only did he lose the apartment, but some of his stuff got broke and his skanky girlfriend left him.

Re:Soo... let me get this straight...

[Number 110]

Sure, and if all he did was went to the ISP and told them to kick out Atriks and they did then it would be the ISP's problem.

The problem is that he went to the ISP and said that they should kick out Atriks because they are spammers. Suddenly the situation changes.

To go back to your example if you tell your landlord to kick your neighbor out and he does so you're golden. However, if you tell your neighbor to kick your neighbor out because he is running a prostitution ring out of his apartment and he does so then your neighbor can sue you for slander because you have made a (possibly) false statement about him.

Now IANAL but if memory serves in order for a statement to be slander the person telling it has to knowingly be making a false statement and the statement has to cause harm to the person it is pertaining to. If Atriks can prove that his statement was false and that he knew it was false he can be found guilty of slander.

The reason this may proceed into court is for two reasons. The first is that as a civil tort Atriks does not have to prove reasonable doubt. They only need preponderance of evidence, which is a much lower standard. The second reason it may make it into court is because a judge is only suppose to throw out a case if it is completely without merit, so if a judge thinks there is any possibilty that Atriks could be innocent of spamming (by the legal definition) he has to let the case proceed.

Is it a screwed up system? In some ways but it is neccessary. If Atriks does not have the right to take the case to court then you might not have the right to take your case to court if someone points a finger at you and calls you a pimp, costing you your apartment and job.

And just for the record I am not Pro-Atriks. My gut feeling from all of this is that they are abusing the system and trying to shaft the person who pointed them out as spammers. All I am really saying is that this is why they are allowed to act this way. The laws that they use also protects you and it is a very difficult to take away that protection from them without giving it up for yourself.

Maybe a change of career is justified

[InterStellaArtois]

Well, if this is the way things are going, I might just retrain as a spammer.

If the law is occasionally on their side, won't that make them just a little more socially acceptable?

This is akin to a drug dealer claiming defamation of character because the local mothers reported him, and his buyers no longer feel safe coming round his place.

Contracts lost to perform illegal activities? Defamation? They must have GOOD lawyers.

Re:Ridiculous

[fishbowl]

"Clearly there's an issue with the law when something like this is allowed to happen"

Yes, it's unfortunate when a person with a grievance seeks to have his case heard in a court of law.

Damn that legal system, giving everyone an impartial venue in which to air their grievances.

Why, the legal process ought to be open only to those people whose arguments you and I already agree with. Everybody else needs to look for some other remedy.

Re:Lets hope we get a real judge

[JPriest]

Even a "good judge" is still required to operate within the law. These spammers were probably within their rights according to CAN SPAM. And by extention, their right to send spam has been infringed on.

We all know "spammers are bad" but the law does not see it the same way. The law is flawed, so the ruling will probably be flawed. Placing the blame on the judge is shooting the messenger.

A legitimate problem!

[cmburns69]

This is a legitimate problem!

Even normal companies can have practically all their external email communications shutdown if they're blacklisted by a site like spamhaus.

The problem with the blacklist system is that it's guilty until proven innocent.

Unfortunately, I'm not smart enough to know what the best solution is. However, there are a lot of smart people here, and perhaps together we can come up with something legal, yet effective!

Re:A legitimate problem!

[vdthemyk]

Ok, how about this...DON'T SEND EMAIL SOLICITATIONS AT ALL! Instead, advertise on websites, advertise on the radio, advertise in printed news, advertise on billboards, advertise on TV...the list goes on...just stop FREAKIN' sending unsolicited emails and advertise elsewhere. It's legal, and it's effective!

Re:A legitimate problem!

[cmburns69]

This IS a legitimate problem!

My company abides by all the rules of good conduct. However, there are a couple of scenarios that break your assertions:

Scenario 1)

A site requires an email address to sign up to limit the number of accounts-per-person to 1. The site doesn't send don't send any email after the initial confirmation email.

However, if people enter in enough garbage addresses, the "good" company gets blacklisted by the various spam organizations.

Scenario 2)

A company doesn't send any email to it's customers at all. However, they can still be blacklisted if a small amount of people generate fake emails (and complaints) and sent them to blacklist organization.

Both of these scenarios are possible under the "guilty until proven innocent" model under which blacklists are currently run.

Many posters here are so quick to point out how people should be considered innocent until they've been proven guilty of things like pirating or cracking, but those same people are mighty quick to condem any attempt at the same justice when it might cause them a little inconvenience!

"Innocent until proven guilty" when sending email = Evil, and should not exist.

"Innocent until proven guilty" when pirating = Necessary to protect our freedoms!

why is ICanSpam a defense?

[alizard]

There's a legal definition of prohibited spam under the act, and there's the entirely different definition (unsolicited junk mail) in the AUP contracts the spammers signed with their ISPs which is consistent with the popular definition and the definition used in most dictionaries recent enough to include spam as anything but a delicious canned meat product from Hormel.

Breach of contract is the authority that ISPs are using to shut spammers down.

The victim was reporting violations of AUP contracts with their ISPs to the ISPs, NOT violations of ICANSPAM.

This case should have already have been thrown out of court.

Anyone tracked down and named the lawyers yet?

Re:Lets hope we get a real judge

[Lehk228]

And by extention, their right to send spam has been infringed on.

They have the right to send spam, and I have the right to complain to their ISP over it, just because something is legal doesn't mean you can't get banned for it, there is nothing illegal about trolling but many sites will ban you on the spot for it, and justifiably so.

Simple way to win

[antifoidulus]

Just forward the spam he was sent(with forged headers of course) to the judge about 10 times. I think the defendant may win some sympathy.

Where's EFF, CDT, etc?

[alizard]

This is a freedom of speech issue, and probably a slam-dunk in terms of a countersuit... since the victim was reporting to the ISPs that their customers were in violation of AUP provisions regarding the sending of unsolicited electronic junk mail, NOT violations of the ICANSPAM act.

Only In America...

[PhYrE2k2]

Only In America...
That's about all I have to say.

Why is it that the courts actually consider cases like these that make absolutely no sense, while people who commit actual crimes have trouble getting court dates. Nice legal system.

---

On another note, the spamee never did any blocking. The ISP does the blocking... so technically, the spamee didn't really do anything but state that he received Spam.

-M

Re:Ridiculous

[Dashing Leech]

"Why, the legal process ought to be open only to those people whose arguments you and I already agree with."

I think the point was the use of lawsuits for what is effectively extortion and partly bullying. The legal process should have a mechanism such that a case can be reviewed for frivolousness before it costs the defendant a cent. There should also be an automatic fine or other penalties for cases deemed frivolous under such a system as a means of discouraging people (especially lawyers) from submitting them unless they're pretty sure they have a good case.

Did you actually read the complaint?!

[glassesmonkey]

This isn't a lawsuit over spam or CAN-SPAM. This OSU student contacted mulitple ISPs of the ATRIKS folks and...
* called the President a "criminal"
* stated that his "personal mission is to stop ATRIKS whenever he can"
* called them a "notorious spam gang"

So if he can't argue that the president is not in fact a criminal, he is in trouble. The spam gang thing, well that probably passes legal muster.
Let this be a lesson to those writting to abuse@some-isp.net. Keep it civil.

Sick an tired of confusion over Free Speech

[Anonymous Coward]

Get it through your heads people. Free speech is not about commerce and never was meant to be The Founders meant POLITICAL speech *not* COMMERCIAL speech. They weren't concend abotu the guy trying to make a buck--they were concerned about the revolutionary trying to establish and keep a democracy in the face of tyrannt and monarchs. Spam is commercial and comes under rules governing commerce. read the letters and speaches of the Founders at the Convention.

Re:we need to stop the bs with these idiots

[ElDuderino44137]

At first read ...
I was all ...
Yeah ...
String 'em up and stuff.

Then I thought about it.
We are the real idiots.

We set up a system to send mail ...
by which anyone and his brother or pet turkey can set up their own eMail server and ...
Then we complain when their pet turkeys clog up our in boxes.

pfft

RALLY THE FORCES

[kronchev]

That's it, time for mob rule. Someone get the rope, I'll gather torches, we also should get some pitchforks. Gonna lynch us a spammer.

Legal Aid

[jd]

Legal Aid in the UK usually covers people who can't afford to hire a lawyer, and they pay decently from what I hear, so you're not getting the dregs of society. Well, no more than you would by hiring a lawyer anyway. Also, the judge often requires the loser to pay the winner's legal costs, so if there's a strong case, people are more willing to fight it out. The money is more borrowed than spent.

The problem is that the US doesn't generally believe in such fallback systems. Hey, I like the US for a lot of things, but it is very bad at handling people on the extreme ends of the spectrum.

Personally, I'd like to see some sort of arrangement whereby both sides get to spend the same amount, the balance is loaned, and the loser of the case gets to pay the loan back. That way, you can't win a case by bleeding the other side dry and frivolous lawsuits would price themselves out of existence.

The reality is that there is no balance in the US system at present, which means that rich spammers may be able to win cases by filing then deliberately dragging things out to kill the defendent's budget. If the spammers win this case, they're not just going to go after those who complain. They'll be able to target any anti-spam or anti-spyware product (they impact their commercial operations), blackhole lists (defamation) and most of the computer media (slander).

Unless people get together and tough this one out, the spammers could render most of the Internet, and most MS-based PCs, unusable before the year is out.