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."'"

Comments

$27,000 is not that small

[cats-paw]

"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 ??

Re:$27,000 is not that small

[hedwards]

No, it's because the benefits of winning greatly outstrips the potential gains. It's an awfully big gamble to take. When you factor in the money it costs for an attorney and the necessary legal staff, you very quickly run up bills much higher than that. Some people will appeal on principle, but I suspect that it's fairly unusual.

Plus, they lost their first trial, you're more likely to get the sum knocked down than overturned at this stage, which means that you end up paying even more money that you would have as you wouldn't be getting legal fees from the other party.

A judge doing that at the beginning of the first trial would be way out of line.

Re:$27,000 is not that small

[Hotawa Hawk-eye]

Spamhaus is fighting this judgment for some of the same reasons IBM fought SCO -- if Spamhaus showed that it wouldn't defend itself against one spammer, them they'd be inundated by other spammers looking to kill Spamhaus through a thousand paper cuts (lawsuits.) Even if Spamhaus spent ten times the amount of the judgment on the appeal, if they win and it prevents a hundred other similar lawsuits it would be worth it.

Re:$27,000 is not that small

[sangreal66]

Spamhaus did in fact, not defend themselves. That is how the judgment was rendered in the first place.

Ridiculous

[Anonymous Coward]

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.

Alas,

[Jawnn]

...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.

Re:Alas,

[Kjella]

...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.

I'd never thought I'd come to the defense of patent trolls, but that is based on what the one who has used it illegally has made, not the one who wrote it. Otherwise you could just take whatever GPL code you can find and say "They've given it away, so their revenue losses are $0 and there's no damages to pay". Could $megacorp have earned $130 million on the patented technology? Yes. Then that belongs to the patent holder. Claiming that your business has suffered $130 million in losses on the other hand requires that you've actually lost $130 millions in revenue - which a fly-by-night, nothing company has not. Unless you can convince the court that without this vicious action your company would have been the next Facebook, but that's an extremely tough sell. Of course it's good that you don't award money to pipe dreams, but it also means you sometimes end up with tactical lawsuits - drain the small challenger's war chest and even if you lose they don't get fully compensated for the growth they could have had.

Re:Alas,

[the eric conspiracy]

Hmm I think Judge Posner has a much deeper knowledge than you of what one can and cannot do in a court of law.

From Wikipedia:

Posner has been called "the worldâ(TM)s most distinguished legal scholar." He is the author of nearly 40 books on jurisprudence, legal philosophy, and several other topics, including The Problems of Jurisprudence, Sex and Reason, Overcoming Law, Law, Pragmatism and Democracy, and The Problematics of Moral and Legal Theory. The Journal of Legal Studies has identified Posner as the most cited legal scholar of the 20th century, and a 1999 New York Times article identified Posner as one of the most respected judges in the United States.

Re:Alas,

[Adrian Lopez]

It's just one of the charms of slashdot, at least half the people here think they're ready to be a Supreme Court judge. Particularly when it comes to stretching the constitution so far that they can strike down something Congress did that they disapprove of.

To take one example, what should "limited time" in the copyright clause amount to? 1 year? 10 years? 100 years? 1000 years? There's nothing a court could latch onto and say 49,9 years is limited and 50,1 years is "unlimited". Now, I'm very much for copyright reform but it's Congress that has to pass it, not trying to divine an exact, maximum limit from an extremely vague wording.

If you're going to criticize other people's interpretation of the US Constitution you should at least understand their position before doing so. The case you're thinking of had nothing to do with X years being "limited" and X+n years being "unlimited". Instead, the case had to do with Congress extending the term of copyright not only on new works but on existing works as well. Without this type of retroactive extension, copyrights set to expire after X years would expire after X years. Otherwise, copyrights set to expire after X years could be extended indefinitely through acts of Congress, thus rendering "limited times" a meaningless term.

Now what was that you were saying about the "charms of slashdot"?

Re:Why isn't this done more often?

[Foobar of Borg]

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...

And yet, when Congress or whichever President discusses "tort reform" they mean making it harder for us actual human beings to sue when we are injured.

Re:Peers

[the linux geek]

SCO wasn't a scam. SCO was a legitimate company, with a very decent product and a large customer base, that was run into the ground by apparently-deranged corporate management.

Possibly career ending for this litigator

[Anonymous Coward]

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.

Re:Makes me sympathise with the spammer

[Anonymous Coward]

It's not bias if it is a reaction to absurd behavior and arguments, as is the case here. This case is filled with plenty of absurdity and never should have been filed. The only reason why this case wasn't summarily dismissed at the outset is because Spamhaus didn't show up to court the first time around and got a default judgement issued against them. It has no merit and should have never been filed to begin with. Is it bias to call a spade a spade here?

This is the sign things are not going your way.

[www.sorehands.com]

I listened to the oral arguments with joy, The oral arguments reminded me of the ruling in e360 v. Comcast, where it started with, "Plaintiff e360Insight, LLC is a marketer. It refers to itself as an Internet marketing company. Some, perhaps even a majority of people in this country, would call it a spammer. "

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.

Re:Peers

[AlecC]

SCO was /at one time/ a legitimate company. But it sold its major asset, and the shell was taken over by patent trolls. Since a company is nothing but a piece of paper, unlike humans, they can be converted from one use to a totally different one. WPP, the world largest advertising agency, descends from "Wire and Plastic Packging", a company which manufactured supermarket trollies. Nokia was once a forest products company, then sold rubber boots. 3M started out mining.

27,345,357 unique messages from E360 blocked

[shoppa]

The most astounding thing:

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.

Re:Makes me sympathise with the spammer

[UnknowingFool]

From my viewpoint the judge was not biased against the plaintiff for who they represented; he was angry at them for shoddy legal work. Admonishing one side for not preparing well isn't new when it comes to the law. In essence, they are wasting his time and the court's time when the court could be hearing someone else who had prepared for their case. Remember this is the Court of Appeals. They should have had their case solid before going to trial as the District level.

Spammers, Music Industry, Patent Trolls

[billstewart]

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!)