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Judges Berate Spammer For 'Incompetent' Litigation
An anonymous reader writes "Joseph Kish, attorney for alleged serial spamming firm e360, must have known he was in trouble when Judge Richard A. Posner interrupted him seconds into his opening statement to berate both Kish and his client. Kish was appearing before the United States Court of Appeals for the Seventh Circuit to explain why his client was entitled to $27,000 from Spamhaus, a British anti-spam nonprofit. None of the judges on the appeals court panel seemed sympathetic to e360's argument, but Judge Posner did most of the talking. He spent fully two-thirds of Kish's 15-minute presentation demanding that Kish explain his client's methodology and lecturing him on its inadequacy. 'This is just totally irresponsible litigation,' he said. 'You can't just come into a court with a fly-by-night, nothing company and say "I've lost $130 million."'"
"The judges expressed surprise that a defendant would even bother to appeal a judgment as small as $27,000."
What exactly does that mean ? Litigation is so expensive that you should just pay up when somebody sues you
for thousands of dollars ? Is the court encouraging blackmail by lawsuit ??
Absolute statements are never true
If you can't, then explain SCOX and all the patent trolls. See, it's perfectly reasonable for a spammer to assume he can do the same when his equally scummy peers are doing it all the time.
You can't just come into a court with a fly-by-night, nothing company and say "I've lost $130 million."'
Yeah, this would be like the music industry claiming to have lost many times their actual revenue due to filesharing - they'd be laughed out of court. Or their victim would be bankrupted. Something like that anyway.
It seems like there are dozens of these type of cases going on constantly. Corporate litigation is rife with abuse right now... this ought to be going on every day. I guess a lot of the integrity has been bought or bribed out of the system...
then you can do this every day!
...Judge Posner is incorrect. One most certainly can "just come into a court with a fly-by-night, nothing company and say 'I've lost $130 million.'" That's the problem with the our legal system. Patent trolls do it all the time. One can bring suit for just about anything, against just about anyone. Happily, every once in a while a court will abandon protocol and call "bullshit" right up front. On that call, of course, His Honor is dead on. Hopefully, this frivolous action will cost the plaintiff and more importantly, his attorneys dearly.
Clearly the right prepayments have not been made. The music industry and the patent trolls do this all the time and seem to have no problem getting the judges on their side.
Well done judge, you made me sympathise with a spammer. I don't want any court case conducted in this way. The judge's conduct is indicative of someone who is in a position of trusted neutrality but with an apparent bias against one side. Even when the case inevitably goes against the spammer, surely the judge's behaviour provides grounds for an appeal, eating up more of Spamhaus's defence fund.
--
Andrew Smith
http://www.brainachegames.com/
Developer of "Seq", the world's hardest puzzle game
For those keeping score at home, judge Posner is likely the best known and most highly regarded judge in America outside the Supreme Court. Getting publicly lambasted by Posner for incompetence does not bode well for any attorney's career.
That is odd, even if it is to $1, doesn't it mean, the defendant admits that there was damage?
Patents Drive Free Software as Hurricanes Drive Construction Industry
But, what is interesting is the e360Insight, LLC, v. ChoicePoint Precision Marketing, LLC case. He sued them for providing them e-mail addresses for Ferguson, Ferron , and myself. Linhardt claimed he "licensed" our e-mail addresses from Choicepoint. However, Linhardt swore under oath (claimed in the case of Ferguson) with that Ferguson, Ferron, and I signed up with their partner. I am thinking that might apply in any further proceedings, if there are any.
Fight Spammers!
You have to keep in mind, this was admitted by their withdrawing the answer and accepting a default judgment.
Fight Spammers!
Richard Posner's book "Sex and reason" is a fun read about the history of sexuality.
to get an arrest warrant on SpamHaus and then go to the UK and start extradition proceedings.
You jest?
If someone who just links to stuff can be extradited and face trial for a criminal offence then nothing is beyond fantasy for the US Legal system.
...not ensnared in crony capitalism. Faints. :)
Tired of all the isms, don't exploit people as an employer, or a government, mmmmK?
'You can't just come into a court with a fly-by-night, nothing company and say "I've lost $130 million."'"
Why not? Big Content is doing it on a daily basis.
Why can't we go back to using jumpers to configure slot adapter cards? Why? I say!
RIAA and the MPAA claim damages in the trillions, more than their industries have ever made. I don't recall hearing any judges berating them.
In his original complaint http://www.spamsuite.com/webfm_send/357 the guy running E360 presented as fact, that Spamhaus had blocked at least 27,345,357 unique messages from E360.
This is like saying, oh, I killed 37 people (and here's a list of who I killed) and that's why the cops are ganging up on me so I'm suing them.
Spamhaus didn't respond at all originally, but shouldn't an appeals court be able to reverse a decision and say, "Spamhaus, you're right"? This is a freedom of speech issue. Anyone (including Spamhaus) should be able to say "X is a spammer" if X is, indeed, a spammer. And although anyone has a right to speak, others have a right to choose not to listen; if people don't want to listen to anyone Spamhaus doesn't like, it's their decision.
- David A. Wheeler (see my Secure Programming HOWTO)
Wow, Note to self to save $100 aside to buy some five of them sometime.
My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
I thought nothing companies were entitled to the same justice as the big shots. Isn't that much of the point of our judicial system?
Just go the the public library. Then return them late and pay a late fee. Support your public library ! ;-)
Stupidity is its own reward.
As long as we're judging the source (aka the judge), let me say that I've actually read one of Posner's books, and he struck me as a raging egocentric jerk. His "Public Intellectuals: A Study in Decline" argues that no one should ever speak out on anything but his subject of expertise, and yet the entire book is an example of him doing just that (posner). I've also seen him engage in some sleazy, politically motivated attacks on people like Paul Krugman (krugman).
So, if conservative partisans give you the warm fuzzies, you should have a warm glow about Posner's name, if not, then this is just another "broken clock" example.
Disapproving Judge is Disapproving.
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
Back in the 80s, 88-year-old Helen Hooven Santmyer published And Ladies Of The Club, a novel which became a New York Times best seller.*
Having the term of copyright extend past the author's death still makes sense, and doesn't violate the concept of "limited time". Publishers pay authors based on how much money they expect to make selling the book (or program or whatever.) Some of that money is an advance, and some of it's royalties as copies of the book get sold. Under the current system, the publisher makes a guess about how many copies they'll sell, and if it's enough to be worth publishing at all, they decide how much advance to pay you, and (if the book actually keeps selling), after the advance is paid off, they keep paying you royalties. If you die, well probably your spouse or kids get it, or your creditors or whatever.
If you're an 88-year-old author, and copyright ends when you die, a publisher is unlikely to be willing to risk publishing your book, because you might die in a year and they wouldn't make much money - if the book is selling well, other publishers could print their own copies and sell it (like the ebooks on Amazon which are often ripped off from still-living authors) - and if they do publish it, they're not going to give you much of an advance, and your kids aren't going to get royalties from the other publishers if you die.
(*Ok, technically she published it with a university press, sold a couple hundred copies mostly to libraries, and then somebody from a commercial publishing house saw it, thought it was great, and then she got the good publishing deal, and died a year or two later. So she did get a reasonable chunk of the royalties before she died, but the book stayed in print for a long time.)
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
As other people have pointed out, when Patent Trolls come to court saying that your misappropriation of their intellectual property cost them $130 million, it's not frivolous, because they're pointing at the $130 million you actually made, and saying it ought to belong to them. On the other hand, this spammer is coming into court, and saying "Judge, I coulda been a contender*, I coulda made'a 130 million dollars selling Nigerian Herbal Fake Viagra, but Spamhaus put me on their list, and now I'm just a bum!", and that's frivolous because all they can really demonstrate is that now they're just a bum.
The music industry is an intermediate case. They're the people who made hundreds of millions of dollars selling the public music from Britney Spears and N'Sync, so yeah, they coulda been a contender if you hadn't been sharing their music for free. On the other hand, just because Joe's Garage Metal Band really does have more talent than Britney, it's really dodgy to argue that they could have made $130m from the stuff you gave away without demonstrating that you'd given away 10 million copies, as opposed to the three copies that people actually downloaded that they don't have proof of.
(*Hey, it's fair use, don't sue me!)
Bill Stewart
New Fast-Compression-only CPR http://preview.tinyurl.com/dy575ks
A beautiful response... though you should perhaps have added "You ignorant dick." at the end.
HAND.
Following your logic, a fixed definite copyright term makes more sense than one based on the author's span. If all works got a 30, 50, 70, whatever year copyright term, then some copyrights wouldn't be worth less due to a shorter duration. And determining whether a work is still under protection would be easy, as all you need to know is the publication date of the work.
They'll have most of the books. But if you have JSTOR access, I suggest first looking up his article "The Problematics of Legal and Moral Theory". It's 90+ pages, but quite an excellent read even if you disagree with most of it like I do.
Why not use a library?
Spamhaus did what sounds like just about the least they could bother to do in response --accept an offer of free legal representation. Kish spent three days back before the trial court looking more closely at that $11.7m number.
Then, he just let his client vary what he was asking for from $1m to $130m. It sounds as if Kish had just hired some flack "expert" to agree with the $11.7m figure, or *any* figure, he probably could have avoided this severe of a dressing-down. Any award still would have been appealed of course, as Spamhaus would just then in turn hire its own expert witnesses. But then this argument would have been a question of expert credibility, not a direct challenge to Kish's competency to practice law by probably the most prominent living federal appeals judge.
Posner says it right here:
When Kish noted that the damages request was later reduced to $30 million, Posner said "That's also preposterous," noting that it's hard to believe a company that never made more than $140,000 in a year could suffer damages that large. "How can a court be bothered with such pie-in-the-sky damages estimates without expert evidence?" he asked.