Judge In e360 Vs. Comcast Rules e360 a Spammer

Brielle Bruns writes "Yesterday, Judge James B. Zagel dismissed claims against Comcast by e360. In the decision, the judge says: '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.' This clears the path for Comcast's counter-suit." e360 is the spammer that got a default judgement against Spamhaus, as we have discussed on numerous occasions.

CvE

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.' This clears the path for Comcast's counter-suit.

Comcast vs. e360Insight: Whoever loses, we win.

Re:CvE

At least Comcast offers services that people actually WANT. You may not like some of their policies, but they are what I would call a "positive" business. That is, as opposed to a negative business like e360 that acts more as a parasite offering "services" that consumers don't really want and quite often hate. They leech off the system.

I say, "Go Comcast!"

Re:"positive business"? What are you smoking?

I think that the GP was referring not to Comcast's quality (which sucks, I'm with you there) but to the fact that, shit or not, they at least provide some semblance of a service that people want. People are unhappy with Comcast not because they don't want the services they offer, but because they are unhappy that they have to pay through the nose for those services and competitors who offer cheaper and better service are almost always locked out of doing so in a given market.

Contrast that to e360, who provide a "service" that nobody wants at all. nobody wants e360 gone so that they can get service from a a different spammer, they want them gone because they don't want to be harassed by any spammers at all. Comparatively speaking, Comcast are saints.

To use a non-vehicular analogy, Comcast is a shitty hospital that provides poor service to the community but is operated and staffed by people with huge community interests and friends in high places, while e360 is a group of frat boys who are paid to steal stop signs so that (outstandingly) sleazy injury litigators can stir up more business in the area.

Official: e360 is a spammer

Sorry, but that felt very good.

Where does this leave spamhaus v. e360 though?

Re:Official: e360 is a spammer

Leaves them right where they were before. e360 won default judgment against Spamhaus because Spamhaus didn't even deign come to court. This is, of course, because Spamhaus operates totally outside the jurisdiction of US courts, and they simply don't care. Not to mention I don't think any court will be inclined to do anything meaningful to actually enforce that judgment, so e360 has a nice big $11 million judgment that's effectively worthless. Especially considering Spamhaus is a non-profit, e360 will absolutely never collect a single penny.

Re:Official: e360 is a spammer

Leaves them right where they were before. e360 won default judgment against Spamhaus because Spamhaus didn't even deign come to court. This is, of course, because Spamhaus operates totally outside the jurisdiction of US courts, and they simply don't care.

IANAL, but actually, that's not QUITE accurate. If Spamhaus had said to begin with that the US courts lacked jurisdiction, that would have been the end of it and e360 would not have won anything. However, Spamhaus claimed in state court that the suit belonged in federal court, thus acknowledging that the federal courts had jurisdiction. THEN they didn't bother to show up in court, and lost a default judgement.

Now, whether e360 can get anything out of them is another matter entirely, but they probably could have avoided the whole mess by denying the US courts had jurisdiction in the first place...

e360 aren't spammers. . .

Everyone knows they are merely a 'high volume email deployer'.

I'm still waiting for my judge to rule

Monday (4/7/2008), I had two motion hearings against e360. One was their summary judgment motion to kick their my case against them, the other was my anti-SLAPP motion against their counterclaim.

Entire details at http://www.barbieslapp.com/spam/e360/e360insight.htm [barbieslapp.com]

Their counterclaim is for calling libel (calling them a spammer and liar) and abuse of process (asking for their domain names in discovery). At the hearing struck/dismissed their abuse of process claim, and said that their paying my attorney fees for the motion is mandatory. The tentative did not strike the libel claim, but she said she would look into that further as the court needed to investigate if the supplemental request for judicial notice, containing articles quoting Linhardt in the press (Cnet and NY Times, DirectMag.com) is sufficient for limited purpose public figure status.

She denied their summary judgment motion on my claims against e360. Mostly because e360 refused to provide discovery to me, but relied upon that information in their motion. On the my libel claim against them, she denied that, except the portion saying that he implied that I hacked into his system.

Re:What's the distinguishing characteristic?

The snail mail sender pays for the entire cost of the message(paper, printing, delivery, etc). The spammer shares his cost with the recipient's ISP.

Re:What's the distinguishing characteristic?

You know, it just occured to me that this is really false.

The spammer shares the costs with the recipient's ISP, and ultimately the recipient (through increased ISP costs). The cost of any one individual spam is very low, but taken together they quickly become noticable.

The junk snail mailer pays for all of the mailing costs, but each piece of junk mail he sends must be recycled or thrown away, creating a small effect on the cost of garbage for each individual user. The cost of any individual junk mail is very low, but taken together, they do have an appreciable effect on the cost of trash collection.

Re:What's the distinguishing characteristic?

The spammer shares the costs with the recipient's ISP, and ultimately the recipient (through increased ISP costs). The cost of any one individual spam is very low, but taken together they quickly become noticable.

That's not really correct. A spammer might have to pay as much as you or I do in terms of costs, but they're getting that amount times millions and millions for free. Since the biggest names these days generally are using bot nets and co-opting servers the cost to the spammer is in most cases essentially zero.

It's sort of like paying $5 for a car and making somebody else pay the rest of the sticker cost for a luxury car. Yes technically they're both paying, but even street people around here can get their hands on $5 without too much trouble.

Trying to fight spam with legislation doesn't have a chance without global cooperation, and the Russians in particular just don't care, as do a few other nations. It's difficult to deal with places like the US where most of the spam originating from here is doing so from compromised computers.

Technical deterrents are difficult to get right, and while they do allow for some help, it's impossible to really fix it. It makes a difference, but with the current net architecture it's a challenge to stop spam and have anonymity as well.

Ultimately what things come down to is making it less rewarding. What we really need is the ability to fine companies that are paying spammers to advertise for them. Admittedly it would be nice to see spammers drawn and quartered, but realistically, it's far easier to find Target, Walmart, Bestbuy and the other companies I've seen advertised than it is to find a cyber criminal that may or may not be located somewhere in southeast Asia. It's just so much easier to follow the money than it is to try and follow the spam.

Of course that's going to be fought tooth and nail, and I'm sure there are other problems with it. But it's a far easier solution to the problem than the others are. Of course, that isn't a license to ignore the other parts.

Linhardt is claiming that with me.

I am suing e360Insight for illegal spamming. http://www.barbieslapp.com/spam/e360/e360insight.htm [barbieslapp.com]

In their failed summary judgment motion (asking the court to dismiss the case based on some evidence), they claim that the spam I tracked to them is not theirs, but it must be someone trying to make them look bad because: 1. They don't spam; 2. That it could have been created in a word processor using publically available information; 3. They don't format their e-mails that way; 4. That it did not come from their IP addresses.

e360 ignored that they have used Atriks, which hides the true IP address by running it through a sort of legal botnet. They also ignored that they use anonymous domain name registrations, so I must have been a good guesser to get most of the domain names correct (their co-Defendant, Moniker, admitted that most of the domain names I identified to e360 were registered through them to bargaindepot.net -- their sister company/codefendant).

Re:What's the distinguishing characteristic?

Sure is (or at least was). I knew a guy who got into the spammer business about 8 years ago (he's out now). I asked him the same question. He was sending a couple of million emails a day and I figured his cost for bandwidth must have been huge. But he told me it was all about the scheduling. He paid standard residential rates for ADSL and just scheduled his email server to send out no more email at one time than he could before the ISP caught on. Bascially he was just using 100% of the bandwidth he was paying for, whereas most residential users only use a small portion. Of course, as time went on, the ISP tightened their AUP and just flat out told him 'we know you running a mail server from your house and we won't allow it'. But at his peak he said he was making something like $1000/mo. He told me once he calculated his cost per ad was like 1/10000000 (one-billionth) of a cent.

Re:What's the distinguishing characteristic?

Every week I fill a 35 gallon trash bag with junk mail. I then pay to throw out (recycle) said bag of junk mail. Entire cost, my ass.

In municipalities that provide trash collection, the government ends up paying that part of the costs of direct mail advertising.

Re:What's the distinguishing characteristic?

Well for me in my City Garbage is a fixed cost per year. So if I use it or not I pay the same amount... However junk mail helps keep the United States Postage Service running. And for relitivly low stamp prices for the level of service the USPS offers us. Daily Home Deliver and Pickup a close by location to get federal forms. Witout Junk Mail Stamps will be well over a dollar a stamp. Mail delivery will be much slower and a lot of other bad things...

SPAM on the otherhand is advertising without the good. They dont support services that we want they are a burden on ISPs even the company who chooses to Spam reputation (albiet I havent seen a legit product being sold in years) will be shot. It really is a take-take indrustry that gives nothing back. At least tobaco comanies keep generations of farmers in business. SPAM operations run cheap make money without any benefit they are not a positive impact on the economy, they do no good.

Re:What's the distinguishing characteristic?

You should stop doing that. Instead, stuff all the spam back into the postage-paid business reply cards envelopes they send. With a little tape, you can really fit a lot of paper into one of those. They look like balloons when I mail them back. And the mail-spammer gets to pay the postage for the trash back to them! Free for me, helps the post office with a little revenue, and financially penalizes the mail spammers -- that's win/win/win!

Re:What's the distinguishing characteristic?

You mean like in a fireplace or non-gas/electric furnace?

-Rick

Re:What's the distinguishing characteristic?

It's your option to shred, toss, or burn the mail in a furnace in the wintertime.

Still, the [i]majority[/i] of the costs are borne by the mailer, thus resulting in limites to the amount, and at least some specifivity. Not to mention that in order to get the best rates you have to identify yourself to the post office pretty well. This limits the amount of scamming that can be done as the scammers are normally stuck paying first class if they want to do anonymous drops. That increases costs to the point it has to be a very good scam or very selectively mailed if the scammer is to have any hope of making money and avoiding the postal police.

Re:What's the distinguishing characteristic?

There's no need to shred un-addressed junk mail (like flyers). If you are getting junk / offers addressed directly to you, I've had good results with calling those companies and asking to be removed from their mailing lists. Typically they don't want to pay the postage for mailing to an uninterested person.

Now I get essentially zero addressed junk mail.

Re:What's the distinguishing characteristic?

Screw that... I followed the instructions at http://www.ftc.gov/bcp/conline/pubs/credit/prescreen.shtm [ftc.gov]

and I get practically 0 junk mail... One place to call/visit, as opposed to haveing to call capital one... amex... etc. etc.

Re:What's the distinguishing characteristic?

Careful, your ignorance is showing. Do you honestly believe there are no ways to block junk mail before it is delivered? Here's a helpful exercise: every time you find something you don't know, throw it into Google and skim the first five links or so. Here's what my 10 seconds of casual effort dug up:

This will block 90%+ of junk mail, and I actually signed up months ago. The only junk mail I get is a local free newspaper that just gets stuffed into every box regardless.
http://www.dmaconsumers.org/consumerassistance.php [dmaconsumers.org]

This thing is pure gold. It will block ALL of those "pre-approved" credit card offers. You know the ones, they come with a 29.99% APR, a $650 limit, and yearly fees? Well, at least the ones my wife gets do. I signed up on this thing and I haven't had a single one since.
https://www.optoutprescreen.com/ [optoutprescreen.com]

Re:What's the distinguishing characteristic?

For those who are skeptical (and i'm one) regarding the fraud or non-fraud of optoutprescreen.com, See this:

One: Verisign signature.

SITE NAME: www.optoutprescreen.com

SSL CERTIFICATE
STATUS: Valid (28-Sep-2006 to 18-Oct-2008)

COMPANY/
ORGANIZATION: CONSUMER DATA INDUSTRY ASSOCIATION
Washington
District of Columbia, US

        Encrypted Data Transmission This Web site can secure your private information using a VeriSign SSL Certificate. Information exchanged with any address beginning with https is encrypted using SSL before transmission.
        Identity Verified CONSUMER DATA INDUSTRY ASSOCIATION has been verified as the owner or operator of the Web site located at www.optoutprescreen.com. Official records confirm CONSUMER DATA INDUSTRY ASSOCIATION as a valid business.

Two: http://www.ftc.gov/bcp/conline/pubs/credit/prescreen.shtm [ftc.gov]

FTC.gov page about the website.

There are also some blog entries around the web where people have had the same feelings about the website and it's possibility of fraud. As always, do your own research. But it looks legit.

~Wx

Re:What's the distinguishing characteristic?

If you were asking what the difference is in the context of acceptability, junk mail senders are forced to pay the carrier -- the postal service -- for every piece of mail they generate. When I want to send a package through USPS, I can, and the fact that the junk mailers are also using the postal service has only made it easier, since they carry their own weight financially.

Spammers, on the other hand, force their carrier -- Internet mail servers -- to bear 100% of the cost while receiving no compensation. Thanks to this, mail administrators are now forced to spend an enormous amount of time worrying about keeping spammers out, instead of making sure that the mail of legitimate users gets delivered. When I want to e-mail someone, I am less likely to be able to do so successfully since it's possible to get caught up in the antispam measures that have been set up on the mail server, as well as the recipient's mail client.

In sum: junk mailers pay their carriers, and contribute to the maintenance of the service. Spammers pay nothing to the mail servers, and are a significant detriment to the service.

They're both annoying as shit to the recipient, though.

Re:What's the distinguishing characteristic?

It costs the USPS money to deliver it. Money that raises stamp prices, or paid via taxes.

Ok, so, let's see. The less customers USPS have, the lower the price for stamps?

If everyone sent 50 letters/day, the stamp price would be so high, it would be unthinkable?

Apparently I fail to follow this logic.

Re:e360 vs Comcast? Yuck

Ever hear of "blue security"? They made a program which, when you got spam email, went to the website and filled out their application with tons of "remove me" messages and junk, making their data files unuseable.

The spammers fought back so hard, they knocked the nation of Israel off the internet (where their offices/server was), for a few days.

The lesson? Spamming is big business.