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Spammers Sue Spam Victim For $4 Million
fronck writes "Self-declared anti-spammer Mark Mumma, a web hosting and email service provider, has apparently been sued for just under $4 million by cruise.com and their parent company Omega World Travel after they were ordered to stop sending him emails and comply with Oklahoma's CAN-SPAM act. Mumma intends to see the trial through court and meanwhile the spam continues unabated. More insight available at Ars Technica."
The courts are very familiar with SLAPP suits (Strategic Lawsuit Against Public Participation).
Many states are adopting Anti-SLAPP legislation that should make this easy to get dismissed and as TFA suggests impose sanctions against the plaintiff.
I'm a big tall mofo.
FTOFA:
"Omega World Travel has argued that Mumma violated their trademark and copyright by using images of the company's founders and the company's logo on his website, and they also allege that Mumma defamed individuals associated with Cruise.com by posting personal insults on his site."
I don't want to appear to support spammers, but if there is merit to the claim, Mumma might have been asking for this.
Socialism: A feeling of discontent and resentment caused by a desire for the possessions or qualities of another.
According to: http://www.suedbyspammers.com/about/index.html
1.Defamation (for calling them spammers)
2.Trademark Infringement
Easy /. links to the spammers sites are:
here and
here
Please click away
This is just another symptom of the twisted legal system that has been allowed to evolve in the US. When will legislators realize that it's time for serious legal reforms to end these types of frivolous, baseless lawsuits that are intended only to intimidate and harass?
The lawsuit actually has to go before a judge before it can be declared baseless. Someone has to make that decision and in this "twisted legal system" that person is the judge. You want this thrown out quicker? Fine. But if you delegate it to someone else, there is just more chance of someone throwing out a legitimate law suit after being slipped a couple of Benjamins. Judges are (generally) harder to bribe than some court clerk.
Wait until the second day of the trial comes and then you can consider if legislation is needed to end these claims. That is, if there is a second day.
Fly me to the moon Let me sing among those stars Let me see what spring is like On jupiter and mars
The second link in the summary links to eMediaWire which has Spammer Sues Spam Victim, Continues Spamming Him as the headline.
Sample this!
Given how big the lawyer lobby is, I wouldn't hold my breath for any real reform to our cluttered legal system. Legislators are very well paid (via campaign contributions if nothing else) to adopt a lawyer-friendly stance.
Show them what spam is about -- call.
Except that he did ask them to stop and even sent a certified letter.
Why should he use a removal process for something he didn't sign up for? If someone else signed him up, then their verification process is broken. (More likely the spammer just harvested the addresses.)
One line blog. I hear that they're called Twitters now.
Umm if you RTFA you woudl have seen where it was said this is a SLAPP siute. IN THOSE WORDS EXACTLY!!!!
Also:
888-333-3116
800-217-1807
Hawrylko, Gregg (GAH50) legal@OWT.NET
Omega World Travel
3102 OMEGA OFFICE PARK
FAIRFAX, VA 22031-2400
US
(703) 359-0200 fax: (703) 359-8889
They have an affiliate program, too, which might be the source of the spam.
They're also a member of the BBB, which might be another avenue to pursue. Last time I did that with Inphonic, though, rather than slapping them for spamming, the BBB changed their policy to allow it, so YMMV.
Just like the judge smacked down the suit against Oreo cookies making people fat?
The lawsuit was about how Oreo cookies did not disclose that they contain trans fatty acids (for which the safe level of consumption is 0 grams per day. Each Oreo cookie used to contain 1 gram of trans fat). This is like suing a company that fails to disclose that they are using a poison to hold the cookie together (which what hydrogenated fats should be, and practically have been, classified as). (disclaimer: you should read up on trans fats. not all trans fats are man made, artificial, or necessarily unhealthy.)
I don't know about the U.S. - it is however always like that in most European countries.
For example, head over to SueASpammer, and you will see right off the bat he calls for people to
Reading a little further, he implies that people should falsify their identity when OPTING IN TO AN EMAIL LIST, and then later using that as leverage (e.g. say "Who the hell is Joe Blow? My name is John Public). I'd have to look into any applicable law, but in my dictionary, that constitutes fraud.
Number three, if you read Omega's suit, they allege that Mumma did not comply with the provided opt-out procedure, but instead called them and almost immediately started threatening them. Mumma allegedly would not provide his information so that they might comply with his "request" to be removed. Instead, he was belligerent, insulting, and threatening. This may not be illegal, but it is certainly in poor taste and is a mark against him. Lawyers and judges don't want to deal with fanatics, for the most part - they want to deal with reasonable people that have a legitimate claim.
Number four, since Mumma's request for removal was NOT VALID via his own stupid actions, and since he allegedly SIGNED UP for this "spam," via indirect admission at SueASpammer.com procedures, this is not a valid claim under CAN-SPAM. Furthermore, this also invalidates Mumma's claim under Oklahoma law, see 776.5.3 at SpamLaws OK.
I would not at all be surprised to see Omega et al. come out of this not only unscathed, but smelling like a rose.
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I am a lawyer, but this is not legal advice. If you get your legal advice from the web, get your head checked.
I'm going to make a few assumptions here:
1) That the Defendand doe indeed have no significant contacts to the state in which the suit was filed.
2) That trademark infringement has similar rules to copyright infringement, which require the action to be brought in a district in which the defendant "can be found."
3) That the usage of the spammer's trademarks are *clearly* and *indisputably* within the realm of fair use and satire.
If all of these apply, it is hard to fathom a good-faith basis for an attorney to have believed that an action should have been justified.
With that conclusion, the filing would be in violation of Rule 11 of the Federal Rules of Civil Procedure, and counsel for the plaintiff would be subject to sanctions, including court costs.
Furthermore, in most states, sanctions in excess of $1,000 or so (except for discovery sanctions) must be reported to the state bar for disciplinary purposes.
Additionally, the filing of a complaint with no good faith basis is a violation of ethical rules, and subject to discipline. Assuming that it is the attorney's first offense, I'd be surprised if it results in disbarment or even suspension; more likely a reprimand or private cautionary letter.
hawk, esq.
See disclaimer in my other post about this not being legal advice.
.
To dismiss a case on the initial filing, the judge must find that even if everything in the complaint were proved, the plaintiff would not be entitled to relief. That's not the case when alleging copyright infringement.
The next chance would be a summary judgment motion. At that point, evidence is weakly tested with the presumption that the fact finder (judge or jury) will take it in its most favorable light, and the evidence for the other party in the least favorable. If no reasonable person could find for the plaintiff under those circumstaances, then summary judgement is granted.
That's not a hard standard of the plaintiff to meet . .
hawk, esq.
It's possible, but I don't know how likely it is. The trial lawyers, being a very powerful lobby, have consistently opposed the idea. See http://www.overlawyered.com/archives/000199.html
Go to http://www.overlawyered.com/archives/000199.html to read the rest of it.
An example from Overlawyered.com's "Loser Pays" archives (bold added):
I know the people behind the Oreo suit. Yes, what you're describing is correct, they were suing over transfatty acids. But they never expected to win the suit, it was merely a publicity stunt designed to get media attention in order to tell the public that transfatty acids are bad.
There are no FDA regulations that say you have to show the amount of transfatty acids, unlike everything else you see in the package.
So, yes, they fully expected the suit to be smacked down.
Nearly anyone or anything can file Chapter 11, but the creditors have to come out better than they would under chapter 7.
There's even a case where a housewife filed chapter 11, and the court found that she could do so (I never found out if she successfully reorganized).
[odd sitcom scene flashes into my head:
H: This place is always a mess when I come home. Why can't you ever clean?
W: Hah! I filed Chapter 11 today. I have 120 days just to submit a *plan* on how to reorganize! ]
hawk, esq.
Nice try, but what we have in the US is not capitalism, not by a long shot. What we have in the US is a bastardized form of capitalism, where the competitive edge is found not in being able to produce the best product at the lowest price, but in having the ability to bribe government to tilt the scales in your favor. Throw in a large helping of socialist welfare policy and you have the US. Again, this is NOT capitalism.
You took his stuff. You pound him.
Next: why should he comply with their opt-out procedure. Had you read the article carefully, you would see that he talking about spam that he certainly did not opt in to, merely responded to.
I hope and expect he will win.
Justin.
You're only jealous cos the little penguins are talking to me.
http://www.healthcastle.com/trans.shtml
I might also note that the FDA does not require that trans-fatty acids be listed explicitly on the nutrition facts label. It does require that they be properly counted, so if you look at the label and see this:
then the trans-fatty is the leftover amount, 1g.Gamingmuseum.com: Give your 3D accelerator a rest.
There's a transcript of the call here. I'm not sure who transcribed it, but it is apparently the phone call you are referring to.
He provided them with a list of domains which should be removed from their list, including his. So I think he really did provide them with the info they needed to take him off.
But you may be right about his intentions, as he makes several comments about the fact that they are already indebted to him. It's a short read, check it out.
If you notice, he actually offered a settelement of $6250 (or soemthing like it), but why? If he really did nothing wrong?
He offered to let the spammers pay him $6250 instead of the full amount allowed under the Oklahoma law. He didn't offer to pay them anything.
What are reported as "calories" on food packages are actually kcal.
IMO it's not that strong of a case for a countersuit. Mumma didn't act in good faith, and refused to provide his email address, but rather provide a list from www.optoutbydomain.com and said his email address was on that list.
I actually think Mumma is in the wrong here, and that single fact will break him. I think the request that Mumma made was in fact unreasonable.
cruise.com should walk away unscathed.
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I worked for Omega World Travel in their "web" department and worked specifically on the cruise.com property. This was a number of years ago just before the DotCom bust. I had the chance to work directly with the owner Gloria Bohan and her husband Daniel Bohan. It's a woman owned biz on paper, he really runs the show. At the time I worked there, they had not yet grapsed the concepts of the internet well yet, but had very hot properties (cruise.com) that were pulling in very lucrative money from what I gathered. They were expending large sums in purcashing domains and had plans to grow the division. They did recognize the potential of the internet market, but had a very poor understanding of technical details at the time. I was originally hired to increase their standings in search engines and design banners for advertising. I used the usual techniqes of the day including keyword stuffing to get better positioning. Of course this included using some names of competitors. To show you how clueless the owner was at the time, he saw the competitors name in the keywords during a weekly meeting and proceeded to whine (yes, he whined like a child, stamped his feet, and had tantrums) about his competitor showing in the keywords. I attempted to explain the reasons and was told I didn't know what I was doing (the main reason I was hired), to remove the keywords, and go back to my office. Suffice to say that was my last day on the job. Now I read this article and I am not suprised one bit by the actions of cruise.com and OWT. I am sure that once Dan grasped the concept of email solicitaion the flood gates were opened. To see that he has been stupid enough to direct his legal department to follow this course of action is about par for him. He still dosen't fully understand the whole picture. I sure hope the people I worked with there have been smart enough to move on.
that's the where they are are;
Omega World Travel, Inc.
3102 Omega Office Park
Fairfax, VA 22031.
Apocalypse Cancelled, Sorry, No Ticket Refunds
http://home.owt.net/ ZERO SECURITY Their internal e-mail is wide open, there are internal selections for various other things also. One I found interesting was where I could get a password for a logon sent to an email adress if it was forgotten. So using one of their employees e-mails you may want to request that your password be sent to you a couple (hundred thousand) times. that ought to interest them---spam sent from their own server to themselves.
Reality is all that stuff that doesn't care if you believe in it or not.--Solomon Short