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Megaspammer Monsterhut Loses On Appeal
Posted by
Hemos
on Sat May 04, 2002 09:40 PM
from the victory dept.
from the victory dept.
Werehatrack writes "Much jubilation was expressed in news.admin.net-abuse.email when it was learned that the long-running court battle between PaeTec and Monsterhut had reached a definitive conclusion on Friday with a New York appeals court finding in favor of PaeTec which finally allowed PaeTec to pull the plug on their least-loved customer's connectivity. PaeTec was actually somewhat restrained in its news announcement on its own website, simply noting that they had won and that they had disconnected Monsterhut."
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Megaspammer Monsterhut Loses On Appeal
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Oh, they're in trouble now... (Score:1)
Extreemly unlikely they will.. (Score:5, Interesting)
Moving Overseas (Score:5, Insightful)
They'll probably hook up with an ISP in Asia someplace, where people haven't figured out the details about spam yet.
Big Whoop (Score:2, Insightful)
Until there are real laws with teeth that take these guys down for good, victories will be short lived.
Not to mention the fact that, since they seem to be able to afford the legal fees of a losing battle, they're obviously making some serious coin from a gullible public, which simply means more and more of these bozos as time goes on.
Sigh....between spam and virii this last week, I don't think I really wanted to see 10% of my email.
class action suits (Score:2, Interesting)
Why aren't there class action suits against spammers? What they are doing is actually against the law in many states, or at least when they forge the headers. They also cause infrastructure damages to ISPs and violate licenses. If they are charged $500 per email in suits against those who complain, and they sent millions of emails, shouldn't they be liable to everyone in a class action suit? Why no one has taken up class action suits against the spammers astounds me, it would be almost certain to win, and it would win large amounts of money.
Hey, maybe I should send an email to millions of people from the Internet about this great idea in which they can make thousands a day!
Lunacy. (Score:4, Interesting)
It's so odd. The US is the most litigious nation, worldwide, and yet we STILL suck at it.
Re:Lunacy. (Score:4, Funny)
If were great at litigation however, this case would have dragged on for a year, costing far more in legal fees than it ever deserved to. Oh wait.. that's what happened.
Re:Lunacy. (Score:5, Insightful)
And I don't find it funny at all.
I just accused our judicial system of being morally bankrupt and functionally impotent. Flamebait would have been more appropriate. Even troll. I think I'll go cry now.
Poetic Justice (Score:5, Funny)
Tie them up, and flog them, Inquisition-style. Every 10th hit or so, you'd stop, and tell them that this flogging isn't really torture, because they specifically asked for the flogging by sending out spam. Then you'd ask them if they'd like to "opt-out" of the flogging. When they said "yes," you could take it to mean "Yes, please flog me some more." Then you could get 5 more guys to come over and flog them too.
As a matter of fact, we could have an army of "Flog-bots" which would seek them out, and bring them to us.
Now that's poetic justice.
Re:Poetic Justice (Score:4, Funny)
So in addition to flogging the companies who send spam, it's about time that all those forward junkies get flogged too.. Here's how:
You ask them to think of a number between one and ten. If the number is between 0-4, flog them that number of times, plus the year that they were born. Ask them to subtract the month they were born multiplied by the day that they were born. If they get the calculation correct, flog them that many times. If they get the calculation wrong, flog them twice as many times.
Then ask them to think of someone that they want to be with. And tell them that this person will die unless this flogged person finds 10 other spammers to come and be flogged all the same.
Tell them that Bill Gates/Michael Eisner (any other big exec) will personally give them a flogging if they go around saying that they'll get money in an email.
Anti -spam Court Decision (Score:3, Insightful)
With this decision in hand hopefully the government can make some sort of new law that says that if you send out a large number of e-mails (spam), that your account is disabled immedatly, pending a full review. A law like this could reduce the internet bandwith signifigantly, and allow legitiment users to gain faster access to the services they desire.
Lets see what this does in the ongoing war against internet abusers
Medevo
RTF? Gah, here it is for those without Word. (Score:5, Informative)
So, for all of the people who can't/don't want to read a RTF file.. here is the text of the first link:
(WARNING: It's really boring)
-- starts here --
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PIGOTT, JR., P. J., GREEN, WISNER, SCUDDER, AND KEHOE, J. MonsterHut, INC., PLAINTIFF-RESPONDENT, MEMORANDUM AND ORDER
PaeTec COMMUNICATIONS, INC., DEFENDANT-APPELLANT.
BOND, SCHOENECK & KING, LLP, SYRACUSE (ROBERT KIRCHNER OF COUNSEL), FOR DEFENDANT-APPELLANT. ALFONSO MARRA BAX, LEWISTON, FOR PLAINTIFF-RESPONDENT.
Appeal from an order of Supreme Court, Niagara County (Lane, J.), entered August 27, 2001, which, inter alia, denied defendant's cross motion for summary judgment.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiff's motion, granting defendant's cross motion and granting judgment in favor of defendant as follows:
It is ADJUDGED and DECLARED that defendant is not in violation of the agreement and may terminate the agreement in response to plaintiff's sending of unsolicited, mass, commercial e-mail in breach of the agreement and as modified the order is affirmed without costs.
Memorandum: Plaintiff, a marketing company that uses the Internet for advertising, entered into an agreement with defendant, an Internet service provider, to obtain Internet access services. The agreement incorporates defendant's Acceptable Use Policy, which provides that a subscriber, here, plaintiff, is in violation of the agreement if it engages in "spamming," defined as "[u]nsolicited, commercial mass e-mailing." Shortly after defendant began providing Internet access services to plaintiff, it notified plaintiff of its intention to terminate the agreement based upon plaintiff's spamming. Plaintiff commenced the instant action seeking declaratory relief and an injunction preventing defendant from terminating the agreement.
Supreme Court erred in granting plaintiff's motion for a preliminary injunction. Plaintiff failed to establish a likelihood of success on the merits (see Technology for Measurement v Briggs, ___ AD2d ___ [decided Feb. 1, 2002]; Talley v Baker, 207 AD2d 967), irreparable harm if the preliminary injunction is not granted (see Technology for Measurement, ___ AD2d ___) or lack of an adequate remedy at law (see Matter of Camp Scatico v Columbia County Dept. of Health, 277 AD2d 689, 690). Contrary to defendant's contention, however, the court did not improvidently exercise its discretion in fixing the amount of the undertaking. The amount of the undertaking is reasonably related to the amount of damages defendant established that it might suffer "by reason of the injunction" (CPLR 6312 [b]; see Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348, 350).
We further conclude that the court erred in denying defendant's cross motion for summary judgment seeking declaratory relief. Defendant established as a matter of law that the agreement prohibits spamming and that neither the two percent complaint limit contained in Addendum 1A, paragraphs 1.4 and 1.5 nor the 30-day notice and cure provision of paragraph 3 applies to spamming. Defendant further established as a matter of law that plaintiff had breached the agreement by engaging in spamming. Plaintiff failed to raise a triable issue of fact. Its submissions in opposition to the cross motion amount to nothing more than "mere conclusions, expressions of hope or unsubstantiated allegations or assertions" that it will be able to prove that it did not engage in spamming (Zuckerman v City of New York, 49 NY2d 557, 562).
We therefore modify the order by denying plaintiff's motion, granting defendant's cross motion and granting judgment in favor of defendant declaring that defendant is not in violation of the agreement and may terminate the agreement in response to plaintiff's sending of unsolicited, mass, commercial e-mail in breach of the agreement.
Entered: May 3, 2002 CARL M. DARNALL Clerk of the Court
Grr... (Score:1, Funny)
Damn, they lost. I'll miss them. (Score:1, Insightful)
Why not pull the plug? (Score:1)
does anyone know the specifics of the contract?
Paetec is just as bad they allowed the spamming (Score:2, Insightful)
the first complaint filed March 22, 2001
items 8 and 9
paetec allowed monsterhut to spam as long as the complaints where below 2%
they both should be put in jail.
this isnt a hurray for the isp and boo for the spammer. Its a spammer geting screwed by a spammer
I wish I could personally have pulled that plug! (Score:5, Funny)
Man, that must have felt good...
It probably went down something like this:
Lucky employee> "Bite my shiny metal ass, spammers!"
*sound of cat5 cable violently ripped out of a router*
Unless they're morons.... (Score:5, Funny)
There are some exceptions to this rule, however.
- A.P.
1 down.... (Score:5, Insightful)
There's one thing I don't get. We are tax payers, the people we elect are law-makers, they are paid to find solutions to common problems. They love passing laws. But WHY do they always have to go against the population and not work with them?
Get this: name me 10 subject that would get 99% approval among the population? heck even TAX CUT wouldn't get 99% because some people would be affraid of the system collapsing, etc etc... but SPAM? come on... if it's not 99% it's going to be 99.9%.
My question is: Why is the system so slow about it? why am I being spammed at a rate of 80 messages a day (including 20 that passes the "HIGH" setting in my hotmail account) I mean if I get spammed, I am sure senate representatives are getting spammed like hell too, I am sure it costs microsoft a LOT in bandwidth and storage and all to keep up with spam on their service (if they have a million of users that are like me receiving 20 spam for 1 valid email (and I am not joking) their system is totally wasted for nothing.
Why so much tolerance? why not blocking every higher class where the biggest spam machines comes from? the hell with the valid users; if they are cutted out, they will do something other than reading about it and sitting there, switch ISP or if it's another country with only one wire well they will do pressure to the higher instances to get their connection back. My way might be drastic, but I am FED UP with it, I've been waiting for 3 years for this problem to get solved and it's just getting worse.
It's like... remember like 5-10 years ago when you could post on usenet without getting any trouble? the worst thing that could happen to you was someone using flash.c against you?
We are barely starting to see something happening, but it's not by destroying the spam of ONE guy that you will scare the others off, this is going to get out of hands even worse, they will see how the legal system is bloated and exploit every single holes in it if they have to.
The system seems to protect the megacorporation more than little guys like you and me, but in this case, it would help BOTH sides, so why is it taking so long? cut asia off for a day, heck, DO SOMETHING. Ideas? heck , these guys are payed over twice my salary to come up with creative ideas, why don't they do their jobs and save me from taking the laws in my own hands?
Re:1 down.... (Score:4, Insightful)
I still don't understand how you can operate a mouse and a keyboard, and respond to an email that will help you to get out of debt and entrust your finance to someone that SPAMMED you, I don't know what kind of education these people get but this is very sad. And this is one of the place where the government should protect people from themselves and I wouldn't say anything.
Anyways the point is, big corporation are even more touched than us as individuals, because they get a LOT of traffic wasted on their net feed, they need extra ressources on their mail servers and either a net admin or every employee needs to check their junk folders once in a while to trim the crap from the good messaged filtered out, this costs productivity and equipment for something that shouldn't be there in the first place.
You don't see telemarketters calling people one by one thru the receptionnist in a 1000 employee company right? you don't see vacuum vendors going from desk to desk in large corporations
Megaspammer booted offline? But how am I... (Score:2, Insightful)
The Original /. story... (Score:5, Informative)
Essentially, here's the lowdown: PaeTec entered an ISP agreement with Monsterhut. PaeTec was informed that Monsterhut was a marketing service that used opt-in service only.
PaeTec soon found out how wrong they were represented. But, before PaeTec could pull the plug, Monsterhut went out and got a restraining order under the basis that their business would be "irrepreably harmed" if their ISP service was shut off.
Monsterhut judge shopped. Found a judge that would grant their injunction.
The problem in court lied over ambiguous language of what the actual acceptable use policy would be. THe terms read something like complaints by 2% of the mails... but, since MonsterHut claims it sends out millions of mails, there certainly wouldn't be any way that PaeTec could get complaints in that number.
Thankfully, the judge saw through the bullshit in this case.
Re:The Original /. story... (Score:5, Funny)
I'm not trying to be funny here, but if there is a cat-v cable next to my desk, sometimes my chair will accidentaly pull it out. Hey, sometimes routers need to be upgraded. Sometimes, while pulling new cable, the older cable gets frayed and burned.
If you have a cable in my company, and I don't like you...you are hella-fucked. No matter what anyone says. I will come up with a good reason, I will pull your cable, and (if the TOS requires avalibility) I will refund your money with a big apology.
A license to spam (Score:3, Insightful)
Nice, eh? A license to spam.
Well, it's all water under the bridge now. The consensus in various forums where this whole issue was discussed to death was that Paetec was making a good-faith effort to get the whole mess resolved and Monsterhut shut down. I don't know, maybe it's just me, but I always had the impression that Paetec was always too eager to trot out the excuse that they are prohibited by court order from shutting down this spamming parasite, in response to every spam complaint (with a generous side-order of crocodile tears).
Anyway, I firmly believe that Monsterhut had a pink contract [com.com] here, but when the complaints began to roll in, and Paetec's IP address space began to get blocklisted, Paetec began backtracking, trying to invoke their standard AUP close, and Monsterhut responded by taking them to court.
Paetec Abuse Admin's Comments (Score:3, Interesting)
whew.. (Score:1)
The bottom line is that marketing sucks, i know we need marketing to sell our product but for christ's sake, let us yank on the spammer's leash HARD to let them know that all they are doing is pissing off ALOT of people.
It's not a true victory yet... (Score:3, Funny)
From the depositions (Score:2)
The CEO of MonsterHut (Todd P. Pelow, if anyone wants to drop an unsolicated flaming bag of shit at his door) responded in a deposition: "MonsterHut has never agreed that what they have done is spam. Spam is mail without accurate headers, with no opt-out mechanism and without an honest subject line." and furthermore "They send targeted e-mail to those who have opted in to the world of the Internet and said 'Yes I would accept offers that may interest me'."
This guy is whacked. Opted in to the world of the Internet? So when I signed up with my ISP it was the green light for MonsterHut? He seemed to think that their Addendum to the PaeTec contract would protect them; the pertinent bits are
By arguing that MonsterHut doesn't send spam, he thinks it would be almost impossible for PaeTec to prove that their victims hadn't opted in at some point in their Internet lives. And if it's not spam, what's the big deal? They were under the 2% complaint rate. What an ass.
I read enough to find them guilty as charged.
For those who want to double-check this, I was reading from here [paetec.net] and here [paetec.net].
Whois-ing spammers (Score:1)
Monsterhut's record as a spam-gang (Score:4, Informative)
In particular, look at the Advice for those they spam [spamhaus.org]
Sig: What Happened To The Censorware Project (censorware.org) [sethf.com]
I can see it now... (Score:2, Funny)
Wanted: Hosting ISP with lots of connectivity. Perfer a company with small legal team and not very deep pockets. We Promise [TM] not to Spam [TM].
C|Net's article (Score:3, Informative)
WWBSD? (Score:2)
What would Bernard Shifman do if his ISP pulled the plug on him? Just an interesting thought for the
Oh, and in case you need a refresher: http://www.petemoss.com/spamflames/ShifmanIsAMoro
Good result, a long time coming (Score:3, Informative)
I wrote out my deposition, had it notarised and sent it off to New York in December last year, and that was the last I heard of it. It's nice to learn that it all worked out eventually.
Ain't Google Grand? (Score:5, Informative)
-----------
Domain Name: MONSTERHUT.COM
Administrative Contact, Technical Contact:
Master, Host (HMC407) hostmaster@MONSTERHUT.COM
MonsterHut.com
4390 Paletta Crt
Burlington, ON L7L5R2
CA
716.298.9797 716.98.4719
Exhibit B [216.239.39.100]
-----------
2 Bedroom Penthouse - Only $350/month!
2 bedroom spectacular penthouse in beautiful Delaware District. Only $350/month! This one will go fast! Need to sub-lease immediately for at least 1 year as I need to leave the country on business. Very clean. Elegantly furnished. Vaulted ceilings. Hardwood floors. Maid service paid for. Pool, Jacuzzi, Gated community and 2 underground parking spots. What else could you ask for! Call Todd Pelow at 716-298-9797, 9-5 Mon.-Fri. and 716-822-3047 after hours and weekends until 11pm.
[/voice in head on]
Ain't that a coincidence??? A with the SAME NAME, who uses the SAME daytime contact # of (716)298-9797 just happens to have a penthouse for rent?? And it's in my price range too !!!
Too bad it's not 9-5 Mon-Fri - OH LOOK - he left his cellular number of (716)822-3047 ! I really hope there aren't geeks here who would also want to rent that Penthouse, or I may have trouble getting ahold of him due to the flood of calls!
[/voice in head off]
Ain't karma a bitch Todd? The best part is - the call won't be UNSOLICTED since you asked for it right above... oh the irony is poetic.
//ct
Kick ass! (Score:2)
MonsterHut swore in court that everything they sent was strictly opt-in. Yeah, like I'd opt in for that.
Congrats to PaeTec and their legal firm.
Even national legislation won't help (Score:1)
Do you all see the underling legal implications?? (Score:3, Interesting)
This allows any ISP to claim a violation under there "Acceptible use policy".
"Memorandum: Plaintiff, a marketing company that uses the Internet for advertising, entered into an agreement with defendant, an Internet service provider, to obtain Internet access services. The agreement incorporates defendant's Acceptable Use Policy, which provides that a subscriber, here, plaintiff, is in violation of the agreement if it engages in "spamming," defined as "[u]nsolicited, commercial mass e-mailing." Shortly after defendant began providing Internet access services to plaintiff, it notified plaintiff of its intention to terminate the agreement based upon plaintiff's spamming. Plaintiff commenced the instant action seeking declaratory relief and an injunction preventing defendant from terminating the agreement."
Note that this judgement does specificaly target "spamming ie mass unsolicited email" but you must think beyond just that small detail and take into consideration the larger implications of agudgeing the legality of the "Acceptible use policy"
This friends is trouble with a capitol T.
For instants... Say a mega large software company *cough* Microsoft *cough* with far reaching clout can convince an ISP to include a rule whereby using blah blah blah free-software is not considered acceptible use. Now suppose it convinces 100's of ISP's to include this.
The legal ramifications are ENOURMOUS.
Pray to god none of Billy's legal staff thinks of this.
He made the trains run on time (Score:2, Insightful)
The number, BTW, looks to be about $.00001 to $.0005 per email, and perhaps less for spam.
But, anyways.. Keep in mind that the cure may be worse than the disease.. Spam sucks, spam is annoying. But finding the *WRONG* cure for it can be worse than the existance of Spam in the first place!
Fascism in germany got its inital support because ``It made the trains run on time.'' We must be careful to not support fascists ``because they stop spam.''
The US legal system AFAIK.... (Score:2, Interesting)
This will not change until its reformed to follow practice of other countries based on common law.
If this was the UK/Ireland/Australia/wherever the losing c*nting spammer in this case would be left with nothing only the shirt on his back after having to pay ALL the expenses the ISP incurred w.r.t this case over the past 12 months as WELL as his own legal expenses.
In fact its doubtful it would have come to trial at all. The barrister acting on behalf of the plaintiff would have made it plain b4 hand that the action was shaky and would have painted a less than rosy picture of the likely financial outcome.
Curmudgeon
Use Pyzor - Spamming becomes pointless (Score:5, Interesting)
http://pyzor.sourceforge.net/
The more users it has, the more effective it becomes. Pyzor uses a central database of spam hashes to compare incoming mail against. If the hash of the body of the incoming mail matches an entry in the database then it's a spam. Discard it.
Sure someone will followup to say that they'll include random characters in each individual mail to change the hash values or they'll change parts of the message on each mail. Yes the authors are aware of this and the software already takes this into account.
how about a disclaimer (Score:1)
Spam, Spam, no good for you... (Score:2)
Cut me off and I will sue.
If and when I lose my case
I'll just find another place for
Spam, Spam, no good for you,
...
Then how come...? (Score:2)
What Spamming Technologies Did They Use? (Score:2)
If they're sending it out directly, without abusing relays, it's easy for ISPs to block their IP address space to avoid receiving spam from them.
Also, while Paetec was enjoined from cutting them off, Paetec's upstream providers, who also have AUPs that ban spamming, could still have done so - either by filtering the packets at the routers where they connect to it, or by advertising blackhole routes (or both - BGP is your friend...) That would cut off abuse of relays as well as direct-delivery spam.
sic transit Spamford Jr. (Score:1, Offtopic)
Anyway, I don't see a problem here. I would be rather curious as to how this whole thing started, as NANAE is not on my list of regular Usenet reading. But it is good that a spammer can't force an ISP to waste bandwidth on them.
/Brian
Re:Don't Spam On Me. (Score:1)
Canadian courts declared that "Sending unsolicited bulk commercial e-mail is in breach of the emerging principles of Netiquette..." So, are we not allowed to put our eMail address on our web site, be it for business, personal or for school because we are merely inviting spam. Is any medium where addresses are easily obtained fair game for spammers?
In indiana we have a "No Call List" forbidding unsolicited calls. So far it been very strongly received (by citizens, not companies). If I live in an apartment, why should I allow companies to try to sell me siding and windows while I am eating.
Spam costs companies and users time and money, just like many of the nasty viruses recently. We shouldn't be forced to bear these costs. When you receive junk mail, the SENDER paid for it, when you receive email, the receiver paid for it. Can you imagine if junk mail was sent just like spam, with forged headers, and by hijacked servers. I doubt that would last long!
Re:Don't Spam On Me. (Score:5, Insightful)
The point? Don't class those of us who get lots of spam because we choose to keep the addresses that we have had for the last 8 years with clueless newbies who don't know how to hide their addresses. We're aware we could use new addresses, but we've chosen to fight for the ones that we've got. All of my addresses are garbled, but goddamn fucking spammers in China, Argentina, and the US are still selling those "million-address" cds, with entries dating back for years, and some of them happen to contain my e-mails, culled from newsgroup postings, documentation, etc. As quickly as I whack-a-mole spammers, others pop us (most are now located in China, either for hosting, or originating - I'd solve 80% of my spam problem if I could just nuke China's connection to the outside world.
I fight hard to rid the 'net of these parasitic scum, and I resent the idea that it's MY fault that I'm getting spammed! Lay the blame where it lies - with the spammers!!!
Finally, regarding your comments regarding telemarketers, do you realize that there is a law against calling someone if they don't want to be called? Yet, under your logic, telemarketers should have the right to "market their product." And being irresponsible with one's address (or number.) You ignore random-dialing, which penalizes me for having a phone, and random-address discovery, where dictionaries of likely usernames are matched against domain names to generate addresses, without even having to run a spambot, or collect someone's data from a form.
Do you use your e-mail for business? Cause if you do, it's got to be a pain to notify all of your clients of your new address...