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."

Comments

Counter Suit

[Anonymous Coward]

As the spammers have clearly identified themselves and their victim should have logs clearly showing their abuse he should counter sue them.

They have kindly set the level for the quantum of damages.

Wow, just wow.

[Qzukk]

The judge will hopefully smack this one down. If the company doesn't like the CAN-SPAM act, they should appeal whatever case they lost against it, not go and sue the guy who reported them to the cops.

Re:Wow, just wow.

[Anonymous Coward]

Just like the judge smacked down the frivolous SCO lawsuit?

Just like the judge smacked down the suit against Oreo cookies making people fat?

Re:Wow, just wow.

[justforaday]

Just like the judge smacked down the suit against Oreo cookies making people fat?

Oreo's can make you fat?!? :-o

Re:Wow, just wow.

[Coolfish]

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.)

Re:Wow, just wow.

[jebell]

I think the spammers made a big mistake filing it in the Eastern District of Virginia. The judges in that particular district are known for not taking crap from attorneys. In fact, the trial docket is known as the "rocket docket." No continuances will be granted without a very good reason and the litigants are stuck with a very strict schedule. The motion to dismiss has a better shot at success there than a number of other federal courts.

Re:Wow, just wow.

[Anonymous Coward]

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.

Re:Wow, just wow.

[operagost]

You have a flair for the dramatic, but the FDA decided last year that the safe level was less than 2g per day in a 2000 kcal diet. That's more than zero.

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:

3g total fat
1g unsaturated
1g saturated

then the trans-fatty is the leftover amount, 1g.

Re:Wow, just wow.

[StalinsNotDead]

"suit against Oreo cookies making people fat?"

What?!?! All this time I just thought I had big bones.

You are just big-boned. Oreos are unusually high in Calcium.

Re:Wow, just wow.

[imurchie]

What are reported as "calories" on food packages are actually kcal.

Whats the rest of the story?

[Wanderer1]

I find it hard to believe that there isn't another side to this tale.

That said, if the company *IS* prosecuting on those grounds, an out of court settlement involving some guys named Vinny is probably at least as effective.

W

Re:Whats the rest of the story?

[nodwick]

From TFA:

A key issue in the matter is the supposed opt-in nature of the list in question. Mumma's argument is that he never opted-in, so he shouldn't have to opt-out. Furthermore, he holds that opting-out only increases the chance of receiving more spam. This makes Mumma appear somewhat belligerent, and it doesn't help that his demands for a settlement for over $6,000 were accompanied by veiled threats regarding Google "caching" his complaint page. Furthermore, the fact that his site also suggested "setting a trap" to nail spammers (PDF of page at the time) make him looks lawsuit happy, although it isn't clear that this means anything other than documenting one's moves closely.

Of course, as the article points out, none of this is actually illegal, even if it does make the victim look a bit less like a white knight. The strangest part of this whole affair is that spamming ultimately originates as a form of advertising. Here's someone who is patently not interested in the company's product, and has made a legal request under state law for them to stop sending him ads. Instead of complying, the company is now going to try to sue his pants off to show him who's boss. Supposing in some bizarro world they win, and are granted permission to keep sending him ads? I bet he's going to be really eager to buy things from them now ...

Re:Whats the rest of the story?

[nine-times]

The strangest part of this whole affair is that spamming ultimately originates as a form of advertising. Here's someone who is patently not interested in the company's product, and has made a legal request under state law for them to stop sending him ads. Instead of complying, the company is now going to try to sue his pants off to show him who's boss. Supposing in some bizarro world they win, and are granted permission to keep sending him ads? I bet he's going to be really eager to buy things from them now ...

I believe at least part of the problem (though I may be wrong in this case) is that the spammers who send the advertising and the people who are selling the product are two different companies. In a sense, the spammers have no financial interest in you actually buying the product, other than in that it maintains the image of spam as an effective advertising medium.

Or even when they are the same company, it seems that companies who advertise through spam aren't relying on the inherent good-quality of their product for sales.

So when it comes to legal action, the spammers aren't so worried about making the product look bad, or even making spam look bad (after all, it already looks about as bad as it's going to). What they're more worried about is their right to continue spamming.

Re:Whats the rest of the story?

[Savage-Rabbit]

Of course, as the article points out, none of this is actually illegal, even if it does make the victim look a bit less like a white knight

I once recieved an abusive letter (Pinned under the windsheild wiper of my car) from another tenant in the same building where had just moved in. They were complaining that I was parkign in a spot that they had rights to and were paying for and which happened to be the best spot available. I returned a very polite letter that I made sure was ice cold and factual outlining that the parking spaces were numbered as where the apartments and that according to my rental agreement this parking spot Nr. X belongded to my aparment Nr. X and that I was in fact paying for it. There were no insults, no abuse and no gloating in the letter, I just explained that they were in fact squattin on my parking spot, not the other way around. I never heard from them again. The the moral of the story is that the biggest mistake you can make is to get carried away in an Oh, goody, I'm in the right... Now lets REALLY chew them out! type frenzy. Alot of people end up making the mistake of hurting their own case by getting abusive or even insulting and thus ruin their position.

Re:Whats the rest of the story?

[B3ryllium]

A lot of people end up making the mistake of hurting their own case by getting abusive or even insulting and thus ruin their position.

It's absolutely astounding, the sheer number of people who don't realize that.

Re:Whats the rest of the story?

[hawk]

There's an art to writing lawyerly letters.

You politely explain exactly what you may do to them if they don't do what you politely ask :)

Actually, they're kind of fun--abut the only part of active practice that I miss . . .

Also, whether it's fair or not, when you're right and the other guy is wrong but stubborn, the letterhead is worth what you pay for it--it tends to get better results (particularly if what you're asking is just "leave me alone") than if you had written the same exactt words yourself . . .

hawk, esq.

Re:Whats the rest of the story?

[wayne]

From TFA:

[paraphrasing]

The anti-spammer being sued (Mumma):

• will not opt out of something he didn't opt into.
• demands money for a settlement, even though the amount is far less than the law allows.
• notes that info about this case will not just disappear (google cache, etc).
• outlines ways of catching spammers by creating effective traps that document the details rather than "just hitting delete".

Of course, as the article points out, none of this is actually illegal, even if it does make the victim look a bit less like a white knight.

Why does any of this make Mumma "look a bit less like a white night"?

This is exactly what these anti-spam laws were intended to do. Get individual people and companies to enforce the law instead of making the police/government enforce the law. The penalties allowed in the law are high enough to make it worth people's time to fight the spammers.

Forcing people to opt-out is a horrible idea because it does not scale. You can not require everyone to opt-out of every company in the US, let alone the world. Worse, spammers would just create a new "company" every time you opt-out of another one.

We want more people suing spammers, of all sorts. We want more people acting like Mumma.

The strangest part of this whole affair is that spamming ultimately originates as a form of advertising. [...] Instead of complying, the company is now going to try to sue his pants off to show him who's boss. Supposing in some bizarro world they win, and are granted permission to keep sending him ads? [...]

The point the spammer is trying to make is not that they have the right to send Mumma spam, but that they have the right to send everyone spam. If they concede this case to Mumma, they open themselves up to everyone they have spammed to drop by and ask to pay either the fine or to settle. They can't afford to pay the penalties for what they are doing, and if they stop spamming, they would have to compete against legitimate travel agents.

What a great ad!

[`Sean]

Wow. This /. article is a pretty good ad for cruise.com. ;)

Re:What a great ad!

[strider44]

must be an "any publicity is good publicity" because all it's telling me is to boycott cruise.com, and there are a lot of fellow slashdotters who would feel the same.

Standard SLAPP suit

[bigtallmofo]

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.

Re:Standard SLAPP suit

[Joffrey]

As far as I can tell, though, this isn't a SLAPP suit. It seems to be a pre-emptive filing to gain "home court" advantage.

Firstly, while I wholeheartedly condemn spam and spammers, we should note that the "article" we all read was actually a press release by one party in litigation. There are probably some additional facts we don't know.

For example, it appears that Mummers sues many spammers in his home jurisdiction (OK) because of the favorable laws there, and makes a tidy profit off of his side business of suing spammers. While the spammer in question is no doubt sleazy, it seems that they knew a lawsuit was almost certainly coming in Oklahoma, so they pre-emptively filed it in Virginia (their home turf) so as to make it easier to litigate.

Re:Standard SLAPP suit

[nenolod]

That's irrelevant. The fact that the individuals violated Oklahoma's anti spam law, means that they are liable for that, and that case would still be litigated in Oklahoma.

This lawsuit is more intended to make the owners of cruise.com appear to be victimized, that's all there is to it. It's a fairly common move in litigation of this nature, and it rarely works out in the spammer's favour. Usually these things get dismissed from court.

Re:Standard SLAPP suit

[OmniGeek]

Well, as one who puts up with spam-fax 'cause we can't use anonymous call blocking, and who deletes lotsa spam from my inbox just to FIND my mail, I'm actually glad someone has found a way to profit from spam at the expense of the spammers.

Even if Mr. Mummers does engage in suing spammers on a regular basis, and even if he makes a tidy living from it, this doesn't mean his suit is without merit. Unless he's abusing the law or the system (impossible for us to know without all the facts on hand), more power to him...

Re:Standard SLAPP suit

[Joffrey]

I agree with you wholeheartedly.

However, when you start to play the litigation game, you have to be prepared for the possibility that the other side will fight back. If you make a lot of threats of litigation, expecting everyone to just cave and give you a few grand to "go away," you have to expect someone (even someone who is clearly "in the wrong") to fight back.

You've missed the point

[Anonymous Coward]

They sue people to get them to give up. A lot of people don't have the time, money and/or will to fight someone in court, so they say "Sorry!" and go away.

Re:You've missed the point

[lowrydr310]

Is it possible for the Plaintiff (the spammers in this case) to be ordered to pay the Defendant's legal bills when they (the plaintiffs) lose the case?

IANAFL

Re:You've missed the point

[mooingyak]

This might be a case where that's possible. In order for that to happen (in the US), a judge needs to rule that a suit is frivolous, meaning that it's so obviously bogus that the Plaintiff should not have even considered filing it.

Not a lawyer, blah blah blah blah ham sandwich.

Re:You've missed the point

[CarrionBird]

It doesn't matter if they have a case, the parents point was that most people cannot afford to defend themselves in civil court.

Re:You've missed the point

[hawk]

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.

Re:You've missed the point

[Zeinfeld]

The plaintiff in this suit is suing because the defendant reported the plaintiff's violation of the law. They have no case.

Possibly, possibly not. Wouldn't it be interesting to get the cruise.com side of the story? It would also be interesting to read the complaint, the links do not work for me.

Omega is a very large travel agency. There are two possible explanations for what is going on. Either the guy is a jerk or the Omega legal department are jerks, (or possibly both)

It certainly seems to be an unusual tactic for a large company to do this sort of thing.

The context that appears to be missed here is that Mummers makes money by bringing lawsuits against spammers. He had threatened a lawsuit himself.

It is not strange or unusual for a company that is threatened with a lawsuit to do some investigation of the person threatening the suit and then bring a pre-emptive suit against them.

Not all the people who bring anti-spam cases are whiter than white. some of the stuff that went on in Utah after their anti-spam law was passed was borderline criminal.

Re:You've missed the point

[imurchie]

If you get your legal advice from the web, get your head checked.

do you have any recommendations of websites for that?

Re:You've missed the point

[rainman_bc]

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.

Re:You've missed the point

[Anonymous Coward]

If you get your medical advice from the web, get ready to sue someone.

Re:You've missed the point

[blippy]

> 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.

IANAL, but I did a short course in law once (I'm from England). I can't remember what the case was, but it was from very old colonial days.

Anyway, it was the case where 2 highwaymen fell out with each other, and petitioned the court to resolve a dispute about how their booty should be shared.

Events didn't turn out quite to their liking, however, as it resulted in them both being hanged, and the lawyer being deported to Australia.

Now that's the way to cut through all the crap!

I like stupid criminals

[grasshoppa]

It makes it all that much easier to find them, and a whole hell of a lot more enjoyable to fuck them up.

Free Mumma!

[Filmwatcher888]

Or at least charge him less, geez.

Re:Hmm

[Anita Coney]

If you read the article, or even the original posting, he's an anti-spammer. He has a website which talks about spam and how to avoid it. The spam industry doesn't like it. So they are suing him.

Slashdot should hire the Ars people

[Anonymous Coward]

They actually write real summaries that explain things. It's quite amazing compared to what we get here at Slashdot. Just go read their story and compare.

America, land of the free...lawsuit

[doublebackslash]

I LOVE living in a place that treats every lawsuit as if the defendant is guilty. For example, if i sue you over the rights to your property, even if I don't have ANY proof, I can prevent you from selling your home for as long as I can keep appealing the courts (hopefully) sane decision. Just think about what would happen if you were about to move and I did that. What if you were a corporation moving out of a factory building. The upkeep, the security risk, the TCO of the place could sink you if I kept you in court long enough. I hate that this country allows that sort of BS.

Re:America, land of the free...lawsuit

[madaxe42]

Dude, that's so untrue - america is the land of the free, that kind of thing doesn't happen in real life, just in hypothetical situations - it's like worrying about government monitoring, it's totally cool and safe, i'm sure they'll never abuse it, you just need to be more trusting!

Re:America, land of the free...lawsuit

[Kwil]

You assume that

A) The corporation manages to live through the lawsuit to begin with, and

B) They're not sued by a front corporation that declares bankruptcy, folds up, and disappears.

Only in the US

[Kombat]

In the US, you can sue for anything at all, and this is what happenes when a company with money picks on someone who doesn't. Hmm.. who does this remind us of? ??AA anyone? The case would be thrown out of court in a heartbeat, but first it has to get there, and that means that Mark Mumma will first have to hire a lawyer (which he already has, according to TFA).

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?

Re:Only in the US

[rsd-17]

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?

Unfortunately many of the legislators are lawyers. It's not in their interest for this state of affairs to end.

Re:Only in the US

[zeth]

Well, just remove all the safety labels from everything and let the problem solve itself.

Re:Only in the US

[Peldor]

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.

Re:Only in the US

[Senzei]

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?

Probably when they stop getting something valuable out of them. The prevailing idea is that it takes big money to win an election. Big money is easier to get from one source (corporations/wealthy individuals) than it is from many (not-so-wealthy individuals in groups). This is even more true when there is some kind of implied return on "investment" for those making the donations.

In short, when politicians stop acting in their OWN self interest, we may see some reform here. Until then the law will chase the dollar.

Re:Only in the US

[EvilBudMan]

--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?--

When we quit electing lawyers to office.

We need to knock them off their horse

[FunWithHeadlines]

" "It simply filed a lawsuit in a court that it knew had no jurisdictional authority what-so-ever," Mumma explained. "Today's spammer tends to think it will escape prosecution because they've never been prosecuted. It has a false sense of security because nobody has come along and legally knocked it off its high horse."

A common tactic nowadays. Take someone to court even on a frivolous charge, knowing they can't afford to play the legal game. This works until someone takes the bluff and says, "OK, buddy, I'll see you in court and I intend to make you lose, and lose badly." For that you need a deep-heeled "victim," precisely the type that tends not to get sued in these sort of situations.

But every now and then a bully miscalculates, as we saw with SCO versus IBM. So what we need is for someone with bucks to take on these spamming sleazes, point out they are misusing the law with these abusive lawsuits, and knock them off their high horse.

Re:We need to knock them off their horse

[idontgno]

But every now and then a bully miscalculates

And even in these cases, the bully gets away by declaring bankrupcy (effectively nullifying any judgement against them), dissolving the offending "corporate entity", and re-forming a little while later under a different name (using assets they manage to illegally hide before vanishing).

It's a nasty weapon which can be most effectively wielded by the nastiest creatures. Normal productive law-abiding citizens can only get shafted.

Kinda makes vigilantism look appealing, sometimes.

Re:We need to knock them off their horse

[filekutter]

Yes, this IS, big money going after someone pointing out the truth (I'll refrain from Bush bashing), to silence them and keep the public in the dark. He's going to need the EFF, and ACLU to fight this one since the spammers obviously have VERY deep pockets.

Re:We need to knock them off their horse

[FunWithHeadlines]

"Was IBM ever a legal pushover?"

No, not at all. But in SCO's case their assumption seems to have been that IBM wouldn't want to bother with a protracted legal case and would want to settle for less money that it would cost to defend themselves. That was the miscalculation. A sleazy outfit such as SCO never figured on IBM caring about their reputation in the marketplace, and so seems to have been caught off-guard by IBM's willingness to go the distance in erasing SCO from the face of the earth.

Re:We need to knock them off their horse

[BoomerSooner]

Tougher to file for people to file Chapter 11. Not corporations, it is very easy to disolve a corporation after paying out all the revenue to employees, etc...

Great guy

[strider44]

I'm not sure whether he is profiting from sueing spammers (don't care - even if he is he's still doing us all a good service) but good on him, and I hope that he gets through the frivolous lawsuit and counterclaims.

I don't know about America, isn't it illegal to make such lawsuits?

I guess we know what ??? means...

[PornMaster]

Cruise.com has filled in the blank in the chain of:
1) Spam
2) ???
3) Profit!!!

It's SUE!!!!

cruise.com

[Anonymous Coward]

Why not make that a link in the article description. Then we can slashdot them and drive up their bandwidth bill to $4million.

You got that wrong my friend... it's...

[Anonymous Coward]

In capitalist U.S.A.,
spammers sue you!

Re:You got that wrong my friend... it's...

[shutdown -p now]

In Communist China,
spammers are shot on sight.

It's just that noone can find them for some reason.

Re:You got that wrong my friend... it's...

[Vince Mo'aluka]

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.

Will there be another win or a first defeat?

[Anonymous Coward]

Interesting stuff at the very end of the emediawire article.

Copied:

SUEaSpammer.com and SUEDbySPAMMERS.com are trademarks of MummaGraphics, Inc. Cruise.com is a registered trademark of Omega World Travel, Inc.

MummaGraphics, Inc., founded in 1993, is a provider of Internet web hosting and web site design services and has begun directing its energies to curbing unwanted junk email, a/k/a. spam. MummaGraphics began suing spammers in August 2004 and intends to file several more lawsuits in the future. MummaGraphics, Inc. is currently undefeated in court.

Re:Will there be another win or a first defeat?

[bradhannah]

The webpage is very one sided. I certainly don't side with spammers. But it is interesting that he talks very little about suing spammers, and more about his simple "Stop sending me mail" message. If you notice, he actually offered a settelement of $6250 (or soemthing like it), but why? If he really did nothing wrong? I think he is hiding something. Maybe I will have to read the actual suit to find out. Brad

Re:Will there be another win or a first defeat?

[djmurdoch]

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.

Follow-up

[Trolling4Columbine]

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.

Re:Follow-up

[maotx]

I believe I read somewhere that the Supreme Court ruled it is ok to use a trademark as long as it is not associated with financial gain. Can't find the link right now but it had to do with how sites similar to the corporate hate sites got away with it.

My Question

[varmittang]

How the hell do spammers get rights like this to be able to sue someone who asks from them to stop sending stuff to him? I mean, can't we make a do not spam list like the do not call list. Or are the telemarketers going to use this as presidence and start calling me agian?

Look at the press release.

[karmaflux]

Mumma wrote it. Why did he make a press release? By the way, eMediaWire is owned by PR Web, and is a site where anyone can issue a press release. For instance this is the latest from my hosting network. Just for instance. My instinct is to blow off anything on PR Web as crap.

Re:I'd like to know more

[necrodeep]

According to: http://www.suedbyspammers.com/about/index.html

1.Defamation (for calling them spammers)
2.Trademark Infringement

Mr. Mumma have already lost the case

[Anonymous Coward]

Just look at the name of the law... CAN-SPAM

Easy slashdot links

[AnonymousCowheart]

Easy /. links to the spammers sites are:
here and
here
Please click away

Re:Easy slashdot links

[nine-times]

Thanks for the referral! I've been looking for a way to plan my next vacation, so I'll have to try these fine companies out.

Their suing for defamation

[The I Shing]

The spammer is suing this fellow for defamation for putting insulting remarks about them on his website. Clearly they're trying to both shut him up about their spamming operation and keep him from pursuing them in court for violating CAN-SPAM. This company will probably end up paying every cent of their victim's legal bills, and are only drawing attention to themselves. Pretty foolish, if you ask me.

Headline

[northcat]

The headline from ARS Technica "Spammer sues anti-spammer for $4 million". The headline from Slashdot "Spammers Sue Spam Victim For $4 million".

Re:Headline

[Dr.Opveter]

The second link in the summary links to eMediaWire which has Spammer Sues Spam Victim, Continues Spamming Him as the headline.

Re:Headline

[legirons]

The headline from Slashdot "Spammers Sue Spam Victim For $4 million"

Somebody is getting spam daily from a particular company who have refused to stop even after a request, a certified letter, and even with a pending court case they're still sending spam. Is there any problem with the word "victim" in this case?

You miss the point

[Ironsides]

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.

loser pays court fees

[peter303]

Some countries control frivolous lawsuits by making the loser pay the court fees on both sides. In the US that is considered a violation of due process, so it genrally isnt done, though a judge can order it. Thus, frivoulous lawsuits can be filed fairly readily.

Sounds like

[Anonymous Coward]

Sounds like this guy is being sued for being a bit of an ass.

He's right, of course, but he still sounds like a bit of an ass.

Re:Hmm

[Conanymous Award]

Where I live, people often put "no advertisements, please" signs on their doors if they don't want a heap of colorful waste paper on their front door carpet on a daily basis.

This case is the equivalent of those paper advertisers suing you for not accepting their carbage in your mailbox. How bold can the spammers get before somebody decides to destroy them once and for all? Can somebody soon paint ads on your house without your concent?

Does he have the Paypal account to donate?

[AShuvalov]

I'd like to donate few $ to Mumma to support his defence. Would be nice to see people joining me.

They have an 800 number on their front page.

[Anonymous Coward]

Show them what spam is about -- call.

Reminds me of t-shirt I saw

[cgrayson]

On CafePress: "I oppose the death penalty for everyone but spammers" Here it is.

Re:Hmm

[NoMercy]

Apart from cruse.com isn't part of the spam industury, before the lawsuit the only thing they did wrong is not send emails saying 'Someone at 192.0.34.166 entered your email to signup to our weekly email of curse prices, if you wish to sign up please click here, if not ignore this email or click here' before adding people to the list.

Re:Madness

[AndroidCat]

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.)

You have ALL missed the point

[bsdbigot]

TFA is decidedly one-sided. By looking at Mumma's *own* websites, this is a pretty clear-cut case of entrapment by Mumma.

For example, head over to SueASpammer, and you will see right off the bat he calls for people to

1. set a trap
2. sue

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.

Re:You have ALL missed the point

[Manchot]

It's a good thing that entrapment only applies to criminal cases, then. Even then, the standards under which it applies are very high. See this Slate article for more details:

1. The idea of committing the crime came from law enforcement officers, rather than the defendant.
2. The law enforcement officers induced the person to commit the crime.
3. The defendant was not ready and willing to commit this type of crime before being induced to do so.

Even if it did apply in civil cases (which it doesn't), this wouldn't even come close to entrapment. Not one of the three legal conditions was satisfied. Basically, you've made the mistake of thinking that traps and entrapment are one in the same, but they're not.

Furthermore, though it may be fraud in a loose sense of the word, it doesn't even come close to criminal fraud. Thousands upon thousands of cases have hinged upon evidence gained from FBI agents posing as 13-year-old girls or undercover cops posing as crackheads, all of whom give phony names. Giving a false name for the sake of obtaining evidence is completely legal, unless that false name gives the impression that you are another specific person (e.g., if you are a drug dealer and the cop comes to you claiming to be your boss). Random names, though, are just fine.

Bog down a spammer's e-mail server.....

[SoundGuyNoise]

1) Using your mail client of choice, create an account using the spammers e-mail address as the "From" and "Reply to" fields (seeing that spammers sometimes use my address as "from", it's only fighting fair).
2) Sending to the same address, attach a large video clip. Larger the better.
3) Send that big ole attachment, and when the spam server auto-replies to it's own e-mail address, see what happens when that giant file bounces around and duplicates inside its own server.

(I don't know much about IP spoofing, so I'm sure that would help as well)

I did it once to a very annoying spammer, and received no more, at least of that spam.

Am I the only one that read the suit?

[natet]

According to the plaintiffs, the defendant (mumma) called them on the phone (specifically their legal department) and asked to opt out. When they asked for his email address, he refused to give it to them telling them to go to his site to find out what it is. I don't know about you, but that doesn't sound like an "Opt-out" scenario to me. If he wasn't even willing to give his email address to them to have it removed, that sounds to me like he was attempting to defraud the spammers. Much like the old auto insurance scam where someone pulls in front of your car and then slams on the breaks to get you to rear-end them. He has to prove that they have another method for getting email addresses for their "e-deals" other than the opt-in section of their website. If he can't do that, then their case against him is pretty solid. He opted in, he refused to opt-out, therefore they can still send him email.

I realize that this may be a very unpopular opinion on slashdot, but If half the things they allege in their suit are true, this guy is about as unscrupulous as most spammers. Companies aren't the only ones that can bring frivolous lawsuits in an attempt to get the other side to settle rather than go to trial. Of course, we probably don't have all the facts from either side, so the truth is likely somewhere in the middle.

Re:Am I the only one that read the suit?

[Capt_Troy]

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.

SCO

[hawk]

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.

My other idea

[SoundGuyNoise]

Make a new e-mail account.

Create a black webpage, with black background, and all text, links, and viewed links as black.

In clear, concise, plain English, post said e-mail address with explicit instructions that no commercial interest may send you unsolicited e-mails, nor will the owner of the address ever opt-in to any mailing list.

Make sure you link to this black page from someplace else, so the web bots can find it.

When spam arrives, give them ONE CHANCE to follow the law and their own printed disclosure to remove you from their lists. Save all spam and spam removal requests as evidence.

1. Post e-mail
2. Unsubscribe
3. Sue
4. PROFIT!!!!

Overlawyered.com : "Loser Pays"

[Mad Man]

Re:You've missed the point (Score:2, Interesting)
by lowrydr310 (830514) on Thursday March 17, @09:12AM (#11964442)

Is it possible for the Plaintiff (the spammers in this case) to be ordered to pay the Defendant's legal bills when they (the plaintiffs) lose the case?

IANAFL

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

June 14, 2003
Essay on loser-pays

The following essay was written circa 1999 by our editor and formerly appeared on the site's topical page on loser-pays.

* * *

America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward "making whole" its prevailing opponent. It's long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.

Overlawyered.com's editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the "Contract with America". Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, "Strict Liability for Lawyering".

As other countries recognize, the arguments in support of the indemnity principle are overwhelming. They include basic fairness, compensation of the victimized opponent, deterrence of tactical or poorly founded claims and legal maneuvers, and the provision of incentives for accepting reasonable settlements. Sad to say, the American bar, though loud in proclaiming that every other industry and profession should be made to pay for its mistakes, changes its mind in this one area, demanding an across-the-board charitable immunity for its own lucrative industry of suing people.

Also in 1995, Rep. Chris Cox (R-Calif.) published a succinct defense of the loser-pays principle, terming it the "full recovery rule" and pointing out that it would improve the position of a large number of plaintiffs with meritorious claims who currently go undercompensated because of the need to pay their lawyers large sums which cannot be recovered from the opponent.

Author James Fallows of The Atlantic called the idea "overdue" and included it in his list of "Ten New Year's Resolutions for America" (National Public Radio).

The principle in other countries: .....

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):

March 15, 2005
"Doctor fights, wins; lawyers aren't swayed"

Dr. Zev Maycon has been sued four times in three years; he's been dismissed before trial each time, but has missed weeks of work as a result, to the

Re:Overlawyered.com : "Loser Pays"

[dgatwood]

Most places where that is the case, AFAIK, have a maximum limit on the dollar amount, which would typically cover a single lawyer. It isn't a license for someone to rack up outrageous legal bills. It is a band-aid for preventing someone from suing frivolously by making them pay reasonable legal bills if they do.

in a couple of cases, though . . .

[hawk]

rent disputes in a couple of alrge cities do indeed work that way. In those cities you *can* stop paying rent, make up some phony excuse or allegation, and force a six month process.

In other places it's not so easy :)

I handled an eviction in El Cajon, CA, in which the deadbeats had watched too many programs about San Francisco evictions.

There is a five day response period. They filed a "motion to quash service" on the grounds that "the process server is a suspected relative". That was enough to put it on the court calendar over a month away . . . (no judge looks at the answer; it just automatically schedules a hearing)

I went in and got an "order shortening time" for a hearing the next day to quash their motion. The judge agreed that it was silly. Normally they would have had five days from then to file an answer or be out. I argued that as a sanction for the frivolous filing, time should be shortened to answer. She gave them until 5:00 the next day.

They thought that they'd been ordered out, and were gone by then . . .

hawk

trans fats not that bad

[r00t]

Trans fats might not be the best dietary choice. They might even be the very worst type of fat.

They are provably not anything like a poison though. They have become a huge part of the US diet over the past 100 years. Our expected lifetime has grown over that time, and is greater than that of many places that don't use trans fats. If trans fats were all that bad, we'd have noticed many decades ago.

So don't be exaggerating to the point of dishonesty. Have a cookie.

Re:trans fats not that bad

[fLameDogg]

Our expected lifetime has grown over that time, and is greater than that of many places that don't use trans fats.

That's interesting that you should mention that, in light of this recent news:

The obesity epidemic is on the verge of causing a stunning reversal in life expectancy, a new study predicts.

If trans fats were all that bad, we'd have noticed many decades ago.

A fair point, and I'm not the one to say that trans fats are the reason for the above ( even assuming it is credible). But certainly obesity is a big (no pun intended) public health problem in the US, and "hidden" trans fats may well be part of that.

At least, it might be good to consider how much longer our potentional life spans might be if we could properly manage our intake of trans fats. I tend to believe that people in general oversimplify things: fat is not "bad", rather it's a necessary part of the diet; same for carbohydrates, sugars, etc. Even cholesterol probably belongs in this category. Moderation, IMHO, is key. It's just hard to moderate what you can't monitor. It's also hard enough to deal with obesity without being hobbled by a complete ignorance of an important contrary factor.

Of course, being very moderate about Oreo cookies is probably a wise choice in any event. :O)

Re:trans fats not that bad

[glesga_kiss]

The reason that America has such a higher life span then the rest of the world is due to our medical instatution for those that can afford it.

Why is it Amercians automatically assume they are the best at everything? Sorry to pop that little bubble, but you aren't even close. The US scrapes in at number 50 in the world for life expectancy. In a list of 50.

Plus, the US health system is regarded as one of the worst in the free world. You acknoledge this yourself with "for those that can afford it". One thing I take issue with is the idea that doctors personally profit from what treatments they prescribe. Sure, doctors should be more trustworthy than car mechanics, but it's a dangerous set-up if you ask me.

Ironically, Cuba is seen as having one of the best health systems in the world. Go figure...

Re:trans fats not that bad

[glesga_kiss]

They have become a huge part of the US diet over the past 100 years. Our expected lifetime has grown over that time, and is greater than that of many places that don't use trans fats.

Utter nonsense. There have been a dozen major breakthroughs that have impacted life expectancy far more than an Orio might. In the last 100 years, we have wiped out childhood diseases such as polio, TB, mumps. We have learned how disease and viri spread, and how to control them. Everyone has fridges/freezers to keep food fresh and unspoiled. All of these advances would have a far greater impact on life expectancies than the 5/10 years you might lose through bad diet. Remember, 100 years ago, if all your kids lived to 18 years old it would be an unheard-of miracle. Nowadays, losing just one child is a major event.

No it's not

[hawk]

It's getting toughter to file Chapter 7, not Chapter 11. And "tougher" under the new law means that if you have enough income that you could pay part (10%? 25%? I forget) of your debts over the next five years, you have to pay that much in a chapter 13 rather walking away in a chapter 7.

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.

Why does this meme spread?

[rjh]

Let's put this in terms we can understand:

"The shoddy state of software today will last for as long as we have programmers. Because, after all, it's not in their interest for this state of affairs to end. If software becomes reliable, they're out of a job."

If someone were to come on Slashdot and say this, a few people would loudly agree with them and quickly get modded -1 Troll. A lot more people would accuse them of being arrogant, closedminded and just generally stupid. Of course many--most!--programmers want reliable software. The benefits to us of reliable software are myriad and manifold. No more calls at 2am on a Sunday because the server crashed. No more scouring BUGTRAQ looking for the next exploit we have to defend against. No more wondering whether the software flying the airplane we're riding on was written by lowest-bidders working in Bangalore.

The benefits to programmers from reliable software are so clear, so obvious, that we would laugh at anyone who seriously proposed that we deliberately kept software unreliable.

And yet, the instant you say lawyers are deliberately keeping the legal system difficult, people nod their heads understandingly and compliment you on your wisdom.

The benefits to a clean, efficient system of law are so huge and so obvious that, without exception, every single lawyer I know--and I know quite a lot of them--is an advocate for streamlining the legal system.

The problem is that society is huge. The machinery of government is truly gargantuan. These enormous edifices of government were put in place for a reason: because as obnoxious as they are, they're a lot better than what came before. (Take the Voting Rights Act as an example. It's a colossal piece of legislation and is a constant pain in the ass during election years. But it's a lot better than Jim Crow.)

So the problem Congress faces is, how do they pare government down and streamline it without returning us to the Bad Old Days we're trying so hard to avoid?

This is a tough, tough problem--all the moreso since the law is, almost by definition, a safety-critical system.

Imagine that you're given 100 million lines of source code. You're told, "Here. A lot of people are unhappy with it and they want major change right now. Oh, and while you're trying to strip out a few million lines and reduce bugcount, our coders are going to continue to write code to adjust to the ever-changing needs of our clients. Finally, remember that any bug you introduce has the potential to affect billions of people worldwide. Have a nice day!"

Please, try looking at the problem as a pragmatist and a realist, not with the simple and sophomoric eyes of a cheap cynic. The world is more complex, and a far richer place, than can ever be sufficiently explained with cheap cynicism.

You've misread his website.

[aug24]

He says that when you get spam (completely unsolicited), click on it and fill in unique (thus fake) details. Then when you are contacted you can link the company to the spam.

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.

Worked for cruise.com

[theskunkmonkey]

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.

Amen!!!

[www.sorehands.com]

I sued Avtech, in small claims, but they kept spamming. When we had our court hearing on January 3, 2005 I served them 20 other small claims cases -- their spam seemed to stop.

There is power in numbers. That is why I post the information on spammers, so that others can sue.

By sharing information and working with others to sue spammers, we can put a dent in spam.

Better Business Bureau

[kidlinux]

Anyone else notice the BBB logo at the bottom of cruise.com's website?

I wonder if the BBB knows what's goin on here, and if they have any rules against unsolicited email. It might help Mumma's case if the BBB has logged any complaints against cruise.com for spamming.

could be because

[budgenator]

that's the where they are are;
Omega World Travel, Inc.
3102 Omega Office Park
Fairfax, VA 22031.

Re:could be because

[jebell]

Yes, but I don't know that the defendant in this case has the requisite minimum contacts for the court to assert in personam jurisdiction over him.

Generally, a court may only assert jurisdiction over a defendant if that defendant has the requisite "minimum contacts" with the forum state. This may be satisfied in a number of ways, the most common of which are residency or doing business in the forum state. As far as I can tell, the only minimum contact I see is that he published the information in Virginia via his web site. I am not knowledgable in this area of law, so I have no idea if this is a good-enough minimum contact or if there is some other basis by which the court can assert personal jurisdiction over him.

Of course, if I were able to download the pleadings I might be able to tell you, but it appears as though they are unavailable at the moment.

Counter Suit

[nhlfoda]

I think what's important to note here, is the following:

"The trial lawyers, being a very powerful lobby, have consistently opposed the idea"

As long as lobbies such as this are permitted to exist, the general public a large is always going to get the shaft...

Those entities with time and money to burn are always going to forge alliances with those who possess little to no moral or ethical values and are only motivated by how much money they can put in their pocket.

If this were not the case, our public airwaves would not be polluted with the stupid pointless marketing of legal firms willing to file suit at the drop of a hat.

Just my $.02

Omegs World Travel

[tin foil hat dude]

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.