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

[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.

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.

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...

[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.

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!

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?

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.