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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.)"
"Slamming spam lands spammer in slammer"
There's no -1 for "I don't get it."
I'll save someone some time- actually, a lot of people a lot of time:
... (x) legislative ...
...
...
(x) No one will be able to find the guy or collect the money
Federal student loans and, at least in my state (afaik), court judgments are exempt from bankruptcy declarations.
At least for judgments against you, that's actually good. You shouldn't get a fresh start if you have a court-ordered judgment against you.
"There is a way that seems right to a man, but its end is the way of death." Proverbs 16:25 (NKJV)
www.barbieslapp.com was not at all what I was hoping it would be about.
"Our two-party system is like a bowl of shit looking at itself in a mirror." - Lewis Black
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?
Can I get a "sue" button on my gmail spam folder? I'd love to get $1000 for each of the of spam emails I get everyday.
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. :)
$1,000 per e-mail is similar to $10,000 per call to someone on the do-not-call registry. This is about taking away the financial benefit of these obnoxious business activities. Pirating music is not a business activity.
Indebtedness that is the result of certain criminal acts is not usually allowed to be discharged in bankruptcy. If you destroy someone else's property, then declare bankruptcy after being convicted of the crime, you will still owe THAT debt. The risk of not being paid back is supposed to be burdened only by those specifically choosing to do business with the party that might declare bankruptcy. However, this matter still has to be raised in the bankruptcy court. If you are owed money for a criminal act, and the debtor files bankruptcy, and you just sit and do nothing, it could be discharged, and it might not be possible to re-open the bankruptcy (if you knew about it).
Whether spamming falls under this is the big question. I believe there is no case law to test it.
For more information, see "Chapter 7 - Liquidation Under the Bankruptcy Code". The relevant paragraphs are near the end, just above "NOTES".
now we need to go OSS in diesel cars
I run the network of a small business. Less than 15 people. Program too. Let me tell you *what* spam costs.
Three years ago, it became a problem that wasn't getting handled by the clients. The CEO was annoyed at having to delete 20 messages a day. He got to deleting things so fast he accidentally deleted a very important message in his hurry. More than once. Cost to the business: ~$50,000 in potential sales.
We bought a spam filtering firewall to handle it. Yes, there's lots of open source solutions--but we had no spare hardware for virtualization, our mailserver was an undocumented mess--and I needed an "on the wire just work" solution. Cost: three hours of research, $500 purchase, $200 a year for a 24x7 warranty.
In 2008 we had our first joe-job--we were running a business class DSL line in the office, 2 Megs, async. The backscatter *took us offline* for over two days. I had BATV installed within four hours, but almost nobody uses it. Oddly enough, postmaster didn't get any complaints that I found. We had to move our mailserver into a co-lo and purchase the bandwidth, as our ISP couldn't filter that out on the fly. And don't start on the poor little firewall appliance nearly bursting into flames as its load went up to 5-6 on a single CPU trying to scan the content.
Because of SPAM, I can't run an open relay, and my users have to connect either via VPN to a trusted open LAN submission service, or I have to install passwords in the outbound SMTP system. Both of these take configuration changes. Because of SPAM, users on aircards can't follow their ISPs email instructions--I've got domainkeys--they need to send mail from *my* mailsystems.
So yeah, SPAM costs our company alone a minimum of $200 a year just in subscription fees and maintenance. In practice, it's cost a lot more, and has taken us offline. What do you think it costs a company the size of IBM, or the state of California?
I'm just grateful I'm not in an industry where I'm required by law to archive all these things. And you are aware storage is *expensive* right? Yeah, I can get a cheap ass drive at home for $100 for 1 TB. But at work--high availability systems, high availability storage, tape archiving, backups, redundancy. Now--not everything needs this, but even the cheap cable attached SAS drives aren't coming in for less than $200, and those don't have much capacity and are like 7200 RPM. To actually benefit from those, I need at least direct attached storage, or a NAS device-- $4000 - $20,000+. Of course, I *could* build it myself and end up with no warranty or support contract...
Now, to capitalize on this and back it up, I'll need either a tape backup system, shipping, or a high speed fiber link to somewhere.
Lest you say all of this isn't caused by one spam--it's well established in the US that the "weak skull defense" is *not* valid. If it's the last spam that caused my firewall to crash, or forced me to invest in the firewall--they are liable for it.
Anybody who runs a megacorp network want to tell mr speedy exactly what spam actually costs their company? Don't forget the extra AV licenses you probably had to purchase for the distributed scanners...
Correct me if I'm wrong, but in filesharing cases, they're usually statutory damages, not punitive, no?
Well, correction.
Both copyright damages and these spam damages are statutory damages (i.e. specified by statute, as opposed to discretionary), and both are intended to have punitive value (i.e. you will only enforce the claim against a tiny minority of offenders and therefore it's the risk and cost of being caught that has deterrent value). Neither are punitive damages (i.e. additional damages beyond what is restitutionary or compensatory owing to specific misconduct by the defendant).
The GP's point is spot on for many people here (though there are also many who have no problem with the penalties and enforcement structure, and instead have issues [some legitimate; many not] with the substantive laws that give way to the penalties in the first place).