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1st Trial Under California Spam Law Slams Spammer
www.sorehands.com writes "In the first case brought by a spam recipient to actually go to trial in California, the Superior Court of California held that people who receive false and deceptive spam emails are entitled to liquidated damages of $1,000 per email under California Business & Professions Code Section 17529.5. In the California Superior Court ruling (PDF), Judge Marie S. Weiner made many references to the fact that Defendants used anonymous domain name registration and used unregistered business names in her ruling. This is different from the Gordon case, where one only had to perform a simple whois lookup to identify the sender; here, Defendants used 'from' lines of 'Paid Survey' and 'Your Promotion' with anonymously registered domain names. Judge Weiner's decision makes it clear that the California law is not preempted by the I CAN-SPAM Act. This has been determined in a few prior cases, including my own. (See http://www.barbieslapp.com/spam for some of those cases.)"
Its 2010, well over a decade after spam became a prominent problem. Why is this the first successfull prosecution of a spammer? Bit late wouldnt you say? I thought the can-spam act has been around for years. Why arent these guys being taken down sooner? Guess better late than never.
The wheels of justice grind very slowly, but they grind extremely finely too -- this guy is finding that out.
Ian Ameline
I hate spam as much as the next guy, but $1,000 per e-mail is just as rediculous as the rewards we are seeing for pirating music. Can't we work to solve this problem without making up huge numbers that no one will ever be able to pay anyway?
I didn't RTFPDF yet, but here are my preliminary thoughts. I understand the rationale that the fine of $1000 per email is that it is punitive, but why $1000? $1000 per email seems like an awfully exaggerated fine. Didn't we agree that fines or other cash penalties should be at least roughly tied to the amount of harm done? For example, sharing a $1 song should not amount to thousands upon thousands of dollars in fines. Likewise, a single spam email that costs the victim almost nothing but time, annoyance, and/or fractions of a cent in bandwidth costs probably shouldn't warrant a $1000 fine.
Now if a scam email actually defrauded someone of money (the victim could either be the person spammed or an ad agency), the punishment should be relative to the amount defrauded, plus some significant punitive penalty.
If we think that outrageous fines are unjust and unwarranted, shouldn't we apply this rule across the board? Figure out the actual damages and go from there instead of just slapping a $1000 price tag on each email. Doesn't that make more sense?
No, we shouldn't, because we really dislike spam - thus we feel that we can adjust our punitive damages required to fit our dislike. On the other hand, we like illegal file sharing, therefore we feel that punitive damages there should be zero.
At least, I'm fairly certain that's how a lot of people's "logic" goes. :)
He had to find the guy in order to sue them. That part is done.
Peter predicted that you would "deliberately forget" creation 2000 years ago...
Littering is $1000 in California, too. What's the harm to anyone if someone throws a piece of (biodegradable) paper out their window?
The harm is not the 1 piece of paper, it's the 1,000,000 that result if there is no fine. The fine has to be punitive enough to stop the 1,000,000.
Think of this as littering in someone else's inbox.
Peter predicted that you would "deliberately forget" creation 2000 years ago...
There's a degree of pragmatism here. The ratio [spam sent] to [court cases won] will be lower than 1000:1, making the per-email judgement, in most cases considerably lower than $1 a message. Of course, a class action could destroy somebody, but then, that's kind of the idea. Deterrent.
by getting a job.
I don't know if increasing punitive damages to fit our dislike is illogical, or even necessarily a bad idea. Punitive damages DO in some sense measure the strength of the public's dislike for an action; the purpose of establishing punitive damages is to reduce the occurrences of a behavior that society deems undesirable. It makes sense that we would want to more strongly punish actions that we dislike more than actions that we actually like. There is no 'objective', 'purely logical' reason to assign any specific value to punitive damages (otherwise they would be compensatory damages, ie equal to the monetary value of the harm done). Therefore, any argument as to how much punitive damages should be assessed for various infractions would logically be based on how badly society wants to prevent the action from happening.
In the case of illegal filesharing of copyrighted work, it is hard to make an argument that any member of society is suffering a great harm that is higher than the compensatory damages equal to the purchase cost of the downloaded work. In fact, until the illegal downloader is caught, the offended party is unaware that a crime has even taken place! From the "victim's" perspective, the world where the illegal download took place and a world where the downloader had never even been born are absolutely identical. It is hard to make an argument that there should be large punitive damages to prevent something that has such an unnoticeable effect.
Spam, on the other hand, causes people anguish long before the criminal is caught. A world where spam is sent and a world where all the spammers were never born would be a completely different world. Society would certainly notice the difference, and would be much happier in a world where spammers had never been born. It makes perfect logical sense to want to increase the punitive parts of the damages.
"I guess you should have thought of that before you sent deceptive spam to the whole world."
In general, if you're unable to pay your judgment in a lump sum, the court will work out a payment plan for you. They'll garnish a set amount out of each paycheck (usually depending on what you can reasonably afford) and give it to the plaintiff. Sure, you might be paying $50 every two weeks until you die, but. . . that's where my first sentence comes in.
"I disagree with you" does not equal "flamebait."
This isn't the same as collecting spammers and carrying out a consistent, focused, public slaughter.
Allow me to state once again that murder, no matter how much it might make you feel good, will never solve the problem.
If every commercial spammer on planet earth showed up dead one day,
You'd be just as well off hoping for the flying spaghetti monster to come and enlighten all the spammers to stop spamming this afternoon for good. Those two situations are roughly of equal probability.
And on top of that, there would be no way to ever verify that "every commercial spammer" showed up dead. The whereabouts of many of the top spammers is unknown, and many others are in countries that have no policies at all against spam (though most of them do have laws against murder).
And ultimately there is too much profit in spam for that to deter spammers from entering the business. If you personally murdered several dozen of the top spammers this afternoon there would still be many, many, more spammers ready to take their place.
If you honestly want to stop spam - and are not just looking for a way to justify (to yourself) murdering another human being - you would look at the real source of the problem. Spam can be stopped, but murder won't do it.
Damn_registrars has no butt-hole. Damn_registrars has no use for a butt-hole.