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Anti-Spam Lawyer Loses Appeal, and His Possessions
Techdirt is reporting that one particularly rabid anti-spam fighter has not only lost his case, but most of his worldly possessions as well. James Gordon tried to set himself up as an ISP to get around the conventions of the CAN SPAM act in order to set up a litigation house designed to sue companies that spam. Unfortunately a judge did not take kindly to this trick and ordered him to pay $110,000 to the firm he was suing, a decision that was not only upheld on appeal but accompanied by some very unkind words trying to shut down litigation mills like his. "But, perhaps even more fascinating is that the guy, James Gordon, didn't just lose the lawsuit, it appears he lost most of his possessions as well. Remember that ruling telling him to pay the $110k to Virtumundo? He refused. The company sent the debt to a collections agency, but told Gordon they'd call off the collections agency if he dropped the appeal. Gordon didn't."
I'm not sure who to be cheering for on this one: the barrator or the spammer. Who should we revile more? Dante reserved the fifth pouch of the Eighth Circle of Hell for barrators, but he says nothing at all about spammers.
John
He'll be fine. Bruce Wayne will bail him out.
Reading the decision, it is clear that the appeals court was biased.
On the issue of the Washington law preemption, the Court referred to the complaint regarding subject lines and from lines as being "vanity domain names" that were not deceptive. The use of From lines of "Free IPOD" or "Free 50 inch Plasma TV" is deceptive. Just because, after opening the e-mail, and doing whois lookups, that you can determine that it is from Virtumundo, does not mean that the from is deceptive.
The appeals court refused to rule who is an IAS, but said that a well known IAS (ie. Hotmail) does not have to show harm from spam because it is obvious, but a little guy does. The Court went further and said that harm under can-spam can't be the ordinary business expense of carrying e-mail, but one can argue that any mail provider must filter spam and carry spam, therefore there can never be harm from spam, illegal or legal. Any good IAS must provide extra capacity so that if there is spam, they will not crash.
Do you feel sorry for the professional spammers that get harmed by the professional anti-spam litigation service? Of course, if Virtumundo itself in the from line, their spam would have been deleted by most filters.
Fight Spammers!
Stone v. Frederick Hobby Associates II, LLC, 2001 Conn. Super. LEXIS 1853,
Superior Court, judicial district of Stamford-Norwalk, at Stamford, Docket No.
CV000181620S (July 10, 2001) (Mintz, J.),
Using an LLC to shield yourself from fraud doesn't necessarily work. As always, YMMV, IANAL, subject to jurisdiction, etc.
You can't legislate goodness. Let each to his own destiny, by will of his freely made choices.
The anti-spam-fax law allows for individuals to sue for damages and so many people have set up fax lines and started collecting faxes and collecting money. I don't know if that is still going on or not, but I heard some people made it a full-time living.
The CAN SPAM act is another problem in that individuals are not allowed to sue. The ISPs are the ones who are eligible for that. This part of the law needs to change. While allowing individuals to sue might be a bit too much for some litigation-happy individuals to resist, I think it might be fair enough to allow domain holders and mail hosts to sue under the CAN SPAM act. I say this because I own three domains and would be happy to file a legal action or two except for the fact that the amount of spam I receive is pretty low at the moment... and by low, I mean one or two every two or three days. (Thank you greylisting! Say that "it won't work" all you like, but the results speak differently.)
Should setting up shop in order to take advantage of a law against spamming be allowed? HELL YES it should! The opposite is certainly true and acceptable -- for business to have laws written to their advantage. Is the a provision in the CAN SPAM act that says you can't do this? Is there any law, federal or state, that says you can't do this? The bottom line is that someone set up a "honey net" for profit via the judicial system. Perhaps its the perceived abuse of the judicial system that is the issue?
Why don't the MPAA/RIAA (MAFIAA) get the same treatment as this lawyer? Of course, this is a rhetorical question...
Because, like a patent troll, Gordon wasn't trying to eliminate spam, he was trying to profit off laws against spam that might allow him to sue--a professional litigant. There's two ./ hot buttons here: spam and abusing the courts. It's a tale of a bunch of shitty people being shitty each other, and we're the one's footing the bill for the judge who has to oversee it all, and the courtroom and clerks they're using.
Not many ./ers are capable of understanding that sometimes bad people (Gordon) do good things (fight spam) for the wrong reasons (personal profit) at a cost to us all (tying up the court system). It's 'haha' because someone who thought he was gaming the system got busted.
Anyone who loves or hates any language, platform, or manufacturer, doesn't know what they're talking about.
14 years ago I purchased a .com for my last name. I was able to get myFirstName@myLastName.com as my email address. How cool is that. Then the spam started (before good filtering). I was getting 1-2 GB of spam a day. My email file (BSD Unix) was open for write 24/7. I could never connect with my email client to download any emails. I'm not even sure if good filtering would have done any good. My hosting company couldn't figure out how to close the email account without closing the my user account (same name) that ran the web site. I basically had to telnet in and VI the file several times a week to delete everything to keep under my account's disk space quota. Also realize that domains still cost $70/year and hosting wasn't cheap back then either.
Spam can really cost someone money even if they aren't an ISP. I eventually had to change hosting companies just to kill that email address. To this day I can't use that address. Even with modern email filters, enough crap would get through to make it not worth using. I'm now using a gmail account.
For the court to be able to act on this assumption, it needs to make a finding of fact to that effect. Before such a finding of fact can be made, other aspects of the complaint must be evaluated. For example, the plaintiff needs to actually be entitled to pursue the complaint they are making.
So basically, in this case, the law says that to pursue a case against a spammer, the plaintiff must be an ISP. Before the court can decide whether the party being accused is actually spamming, it must determine whether the plaintiff is an ISP. The plaintiff failed that requirement, according to the court, case closed.
This may sound annoying to you in this one case, but really, this needs to be the case, in order for the legal system to throw out bad cases quickly. Read up on standing.
Are you adequate?
Imposing a cost on sending of email is not going to work.
You forget that many times spammers are criminals using botnets composed of hijacked machines, whose innocent owners would wind up paying the price while the spammer cheerfully pays his chump change to the botnet operator.
My favorite solution consists of the following:
1. Widespread adoption of SPF/DomainKeys to
2. Allow anyone to sue a spammer and not just an ISP
3. Make it illegal for credit card companies to process payments for spammed products.
On the whole, politics will probably make 3 the steepest uphill battle. I'm sure the credit card companies are well represented at DC.