Panaqqa writes "In a not unexpected move, the US 7th Circuit Court of Appeals threw out the $11 million awarded to e360 Insight and vacated a permanent injunction against Spamhaus requiring them to stop listing e360 Insight as a spammer. However, the ruling (PDF) does not set aside the default judgement, meaning that Spamhaus has still lost its opportunity to argue the case. The original judge could still impose a monetary judgement, after taking evidence from the spammer as to how much Spamhaus's block had cost them. This is unfortunate considering the legal leverage the recent ruling concerning spyware might have provided for Spamhaus."
Well, then I'm not unglad to hear about this. I still can't not unbelieve that their initial lawyer didn't know how to handle the very basics of the case. I wasn't not hoping to hear that this case would just get thrown out completely...how much can't the US government not do about this though? Inquiring minds don't not want to know...
I think "not unexpected" is valid and meaningful statement. It doesn't quite mean the same as "expected." Though perhaps "unsurprising" would be a better way of expressing the meaning.
The court would have had a hard time justifying throwing the case out completely. It's probably true that the court initially didn't have jurisdiction, but according to the article, Spamhaus made an initial appearance in the case. Generally, if you make an appearance, you have submitted to the jurisdiction of the court. It's not quite the catch-22 it seems, since you can make an appearance SOLELY for the purpose of challenging jurisdiction without submitting to the jurisdiction of the court. So - basically Spamhaus' attorney messed up and their client has to live with the consequences.
Btw - I am an attorney.
It's probably true that the court initially didn't have jurisdiction, but according to the article, Spamhaus made an initial appearance in the case. Generally, if you make an appearance, you have submitted to the jurisdiction of the court.
FWIR, Spamhause showed up in state court & said, 'you have no jurisdiction, the US court system has no jurisdiction & even if it did, it would have to be a Federal court'. The state judge threw it out properly judging that with no presense or assets in his district, he didn't have jurisdiction. 360 then went to a Federal Judge to redo the case & Spamhause's lawyers in the UK rightly asserted that "fuck the US court system, they have no jurisdiction, don't waste your money." or words to that effect. The problem is that the Federal Judge forgot that US law applies in the US not the world and ruled that being in another country doing things that are perfectly legal & not tortable (is that a word?) in that country is no reason that US law shouldn't be applied to them. In accordance with the new ruling on spyware, 360's case isn't actionable in the US anymore either, but that didn't seem to bother the appeals judge at all in denying the appeal of the ruling.
Spamshaus came into Court and filed an answer that in part said, You didn't serve properly and you have no jurisidiction. Then they said, we are not going to play this game, we want to withdraw our answer.
If you don't answer at all, a default is entered. This is what happened.
Personal jurisdiction is a tricky thing. Just being a citizen (human or corporate) of a foreign country doesn't by itself exempt you from U.S. court jurisdiction. Now, not having any business dealings or assets in the U.S. might make a judgment against you noncollectable, but you may still be subject to U.S. jurisdiction. The issue really comes down to - does the nature of your contacts (either direct or indirect) with the U.S. make it reasonable for you to expect to be "haled into court". It's a comple
In America; once lawyers get envovled; you loose. Even a "win" means a financial loss no citizen could (nor should have to) bare. The only ones who ever win are the Lawyers from the judge down; it is a phase locked loop that only takes money as an input and outputs...absolutely nothing benifical at all.
Shouldn't I be able to list any domain or IP in any database I please? Isn't it the responsibility of the people using the database to determine whether it's a bad idea? Isn't the real issue between the people blocking email and their customers who are missing email?
Right, but isn't it up to the users of Spamhaus to determine the accuracy for their purposes? I'm sure if the *users* of Spamhaus really cared about getting mail from e360 they'd let Spamhaus know about it. Sounds like the only people who care that Spamhaus lists e360 is e360.
It's up to the people who/use/ my list, such as employers, to determine the accuracy of the list, and whether they should use it for their purposes. I give no warranty and I have no liability of the information in the list.
A simple background check (which has been done at every job I've ever held) would reveal your list to be shite
Most places that do background check pay some third party to do it. If that third party relied in whole or in part on the list in question, perhaps to fill gaps in other records, then, no, the background check would not reveal the list would be wrong, it would return the results of relying on the list.
Now, what would happen in the real world today is that the first person to find out they were flagg
An idea I had a while ago was this: Spamhaus could have list A, the spammer list. This is what the judge prevented them from putting e360 on.
So then they could have list B, the "list of people we wrongly suspected were spammers and have been ordered not to characterize as such, wink wink".
Then Spamhaus sends everyone lists A and B. Then everyone using Spamhaus's list to filter says, "Hey, why not just block A *and* B?" Spamhaus assists in this process by making the default when you sign up to be that you
Shouldn't I be able to list any domain or IP in any database I please?
at YOUR site you can choose to drop any IP datagram you want. any. you are NOT required by law (ianal) to HAVE to receive (let alone read) any or all data that hits your site.
freedom means you have the right to allow or disallow anyone into your 'home' unless they have a warrant and are an official gov rep (eg, police).
in this case, spamhaus makes 'recommendations' (not unlike MS in yesterday's article letting the religious nutjobs tell
When you put then on a spam block list, then you're making a claim that they're spamming and if false that is slander. It doesn't really work to say "these are just a list of IP addresses, I didn't make any claims". If I made up a list of a bunch of pedos and your name on it, then released it as a list of "people I don't like" and that maybe you don't like them either *wink, wink, nudge, nudge* you'd have a pretty good slander case. The only thing that's sad is that they're probably guilty as hell, but Spam
The problem is in defining what it is that Spamhaus does. I think it's fair that they market a means by which people can block email. They give very specific instructions on how to use their service for this purpose. That said, they're providing a service that their customers ask for. They clearly outline their criteria and let their customers decide if and how to use it. It seems to me that the spammers only have a legitimate complaint against the ISPs that use the Spamhaus data. Even then, it would be a ha
Why? The receiving end is the one with the power to use or not use your list, or to whitelist certain entities in that list. On my own mail servers, I reject stuff that is on zen. The sender will get that error, and can talk to their own mail admins, who should see *why* they are on the list and work to get themselves removed. If that is impossible, and this is, indeed, a legitimate company trying to contact one of our employees (this has never happened, if they are legit, getting off the list is trivial), then the receiving end is the one who has the power to make the decision whether those messages should come in or not.
I don't see the problem with keeping a list. If it is a bad list with too many false positives, then nobody would use it. Sheesh.
You can, as long as that database doesn't infringe on the rights of other companies to do their business. If you listed Microsoft, SCO, and Apple all in a database of "douchebag companies", posted that on your site, and then told everyone to block them for being douchebags, I have a feeling you would get sued (and rightfully so).
Oh please, how many sites out there list "douchebag companies" and tell people not to buy from them? It is called free speech.
If you listed Microsoft, SCO, and Apple all in a database of "douchebag companies", posted that on your site, and then told everyone to block them for being douchebags, I have a feeling you would get sued (and rightfully so).
Nope, you're wrong. Since you mentioned Apple...
Carl Sagan once sued Apple for calling him a "butt-head astronomer." Sagan lost the suit, because according to the judge:
There can be no question that the use of the figurative term 'Butt-Head' negates the impression that Defendant was seriously implying an assertion of fact. It strains reason to conclude that Defendant was attempting to criticize Plaintiff's reputation or competency as an astronomer. One does not seriously attack the expertise of a scientist using the undefined phrase 'butt-head.'
I'm sure "douchebag companies" would fall into the same category.
Spamhaus' Register Of Known Spam Operations (ROKSO) is a list of "known professional spam operations that have been terminated by a minimum of 3 Internet Service Providers for spam offenses." That's a much more serious accusation than "butt-head" or "douchebag." If it's true, of course, then the plaintiffs can burn in hell... but they claim it's not true, and they've been falsely labeled by Spamhaus, which has damaged their reputation and cost them business.
I didn't realize you could make German haute cuisine using SPAM...I knew about all the uses in pan-Asian cuisine, but German food with SPAM could be interesting!
Germany, IIRC, still has food purity laws. You can't sell a product as "beer" unless its only ingredients are water, yeast, hops, malt and barley. Sausages must be 100% meat from a named part of the animal (and the animal should not have been named "Fido").
Spam, I suspect, would fall under the category of "cheese".
I wonder how long will it be before some company like these fools [accucast.com] comes along and starts lobbying the powers that be to tweak "CAN-SPAM" like fables. I say get to the hardcore bottom of it all. Oh more Viagra spam eh... Sue the damn pharmaceutical companies for allowing their advertisers to break laws. That will minimize a whole slew of spam. Think about the monies pharmaceutical companies would have to even dish out to hear a case if half the US started filing small claims cases, class action cases, etc.
Here is an idea that might help stop the medical spam. Lets assume that these spammers actually have some kind of product (whether it works/does what is claimed or not is irrelevant, what matters is that they have a product) and are actually sending it out to people who buy from their crappy.biz website.
If the place where the pills are coming from is located outside of the US, the drugs can be stopped in the mail (I believe mailing drugs into the US from outside of the US is illegal). If the place where the
Certainly if someone wanted to receive e360's messages, or if they were EXPECTING a message from e360 and didn't get it, they can talk to their own mail admins and have e360 whitelisted. Why is it so hard to effectively explain to the courts that Spamhaus has nothing to do with whether e360's messages get through or not, other than responding to a query from the receiving end asking if Spamhaus believes they are a spammer?
In reverse, is the do-not-call list something that will be targeted next?
Why is it so hard to effectively explain to the courts that Spamhaus has nothing to do with whether e360's messages get through or not, other than responding to a query from the receiving end asking if Spamhaus believes they are a spammer?
Because Spamhaus didn't show up in court to explain it. From Wikipedia:
Spamhaus initially succeeded in moving the case from state to federal court, but then stopped defending itself against the lawsuit, because it is based in the United Kingdom and outside the jurisdiction of United States courts. The American court had no choice but to award e360 a default judgment totaling $11,715,000 in damages. Spamhaus subsequently announced that it would ignore the judgment.
Sues MS, and others for blocking there popup, err, targetting purchasing opportunities. Seriously, the ISP or who ever the end user is, chose to use the service, so they implcitely said 'they don't want to hear from you'.
I can't remember the original source but it was a few years ago I read an article about spam. Very interesting, most of the cost of advertising went to the advertiser (as it should) with paper media. Not so with spam, almost all the cost of spam goes to the recipient and hardly any to the
I think corporations that get spammed, including ISP's should be able to go to companys like DoubleClick and e360 and bill them for the aggregiate costs. "You sent 2 million emails through our network last month, here is your bill for 200k for bandwidth + costs for the end users"
unfortunately that same logic could be applied to other sites that the ISPs want to extort
"Hello Google, you sent x Gigabytes of data through our network to our customers, here's the bill for the bandwidth used..."
Possibly, but there is a fundamental difference in the situations. The user requested the data from Google, so there ISP fees apply for the bandwidth.
How so? I have never, ever requested Google's Ads when I'm looking at a website, yet I'm inundated with them at every turn. In a fundamental way, push ads are no different than spamming, but, for some reason, they are considered more "acceptable" to the populous.
Try using Firefox with heavy blockers. Even a tailored hosts file on your router would help, assuming you are running bind or something similar on your router.
The suit was mistargeted. Spamhaus doesn't force anyone to use it. It is the ISPs that impose it on email accounts, not Spamhaus, and consequently, THEY should be liable if they do not allow their users to disable such blocking. Use of Spamhaus contributes to email unreliability and should not be imposed by ISP services. An email account carries with it some expectation of usability, which IMHO cannot be simply TOS'ed away in the fine print. Email is unreliable enough without blacklist (or for that matter, even greylist) techniques being applied by lazy ISPs who are looking for a brainless way to reduce their email traffic load. Either ISPs are a common carrier or they are not, the imposition of blocking techniques should carry along with it some responsibilities for its failures.
If they sue an ISP in the US, the ISP probably would show up. Linhardt only sues people he thinks will default. When he sued several NANAE participants, including me, he dismissed the case (a 2nd time) when the judge was about to rule on two motion to dismiss for lack of jurisidction. Mark Ferguson (www.whew.com) included documentation regarding Linhardt creating fake signup documents. If an ISP was sued, both CAN-SPAM and the CDA gives immunity to the ISP for filtering and blocking. See White Buffalo Ventu
Whether e360 is now a spammer is not a fact determined by the default judgment. The fact determined by the judgment is that e360 was not a spammer when Spamhaus so identified it on the date of the action giving rise to the complaint.
Though the default judgment still stands, the trial court judge will have to look harder at any injunction and money damages -- not take Linhardt's word for it.
The reason for this is my case against him, at http://www.barbieslapp.com/spam/e360/timeline.htm [barbieslapp.com] , because in my case, I argued (and lost) personal juridiction of Linhardt, in part because he said (and the court believed it) that he had no business in California. I pointed out in his affadavit in the Spamhaus where he said "e360 and I lost contracts..." and "e60 and I lost business opportunities.." and that of the 7 companies listed, 4 are in California, he explained it away by saying that he really meant that when he said, e360 and I he meant e360 and I in my role as president. If you don't suffer harm personally, you have no standing to bring a lawsuit. I filed a motion for reconsideration, on Linhardt's personal jurisdiction, in part based on this.
Okay, here's my idea to reduce spam: 1) Send a massive spam campaign selling pharmaceuticals (viagra, weight loss, zoloft, hair regrowth, you name it) 2) When the orders come in, send out authentic-looking prescription medication, but instead of medicine the pills are made of fast-acting poison. 3) Thousands of people who are stupid enough to actually respond to spam, buy medication from spammers, and ingest said medication, are killed. 4) Massive media coverage of the event makes spamming seem "dangerous" to t
I skimmed the ruling, and he really goes through logical contortions to vacate the injunction, while having to accept that everything that e360 claimed was factual, because of the egregious legal errors that Spamhaus made.
He really had to work hard to "do the right thing".
I think Spamhaus could have avoided the issues they are dealing with now by not labeling spammers as spammers, and came up with a more politically correct term that is legally bulletproof.
Spamhaus are not in any trouble because of what name they used, or even what they listed. They're in "trouble" on a technicality, they messed up their claim that this court has no jurisdiction over them (which it doesn't; they are not a US company and have no holdings or business in the US, so a US court can't do a damn th
They can be blocked from continuing to do business in that jurisdiction. Not that it is enforceable in this age of the Internet.
As a donation-funded non-profit organisation based in the UK and Switzerland, they don't do business in the US at present, never have, and are not particularly likely to do so in the future. They don't even have a tax-exempt status in the US. A US court cannot prohibit US citizens from donating to them, nor can they confiscate those donations. There really isn't anything that a US court can do to them.
There IS a US/UK agreement allowing collections cross border, although it's extremely complex and all but requires the plaintiff to fight it out in the UK courts.
The UK courts are a lot more fun though, as it's a loser-pays system, so you can't just go randomly suing people unless you're prepared to pay both sides of the battle -- If you want to sue, you either have to be rich, or right.
Oh yeah? (Score:5, Funny)
Re:Oh yeah? (Score:5, Funny)
Parent
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Re:Oh yeah? (Score:4, Insightful)
-matthew
Parent
Re:Oh yeah? (Score:4, Informative)
Parent
Re:Oh yeah? (Score:5, Informative)
FWIR, Spamhause showed up in state court & said, 'you have no jurisdiction, the US court system has no jurisdiction & even if it did, it would have to be a Federal court'. The state judge threw it out properly judging that with no presense or assets in his district, he didn't have jurisdiction. 360 then went to a Federal Judge to redo the case & Spamhause's lawyers in the UK rightly asserted that "fuck the US court system, they have no jurisdiction, don't waste your money." or words to that effect. The problem is that the Federal Judge forgot that US law applies in the US not the world and ruled that being in another country doing things that are perfectly legal & not tortable (is that a word?) in that country is no reason that US law shouldn't be applied to them. In accordance with the new ruling on spyware, 360's case isn't actionable in the US anymore either, but that didn't seem to bother the appeals judge at all in denying the appeal of the ruling.
Parent
Sort of (Score:5, Informative)
If you don't answer at all, a default is entered. This is what happened.
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Next up (Score:5, Funny)
Spam the Judge Haus? (Score:2)
Err....
Still don't get it. (Score:5, Insightful)
Re:Still don't get it. (Score:4, Insightful)
Parent
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-matthew
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It's up to the people who
So is it OK with you if I put you on the list?
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Most places that do background check pay some third party to do it. If that third party relied in whole or in part on the list in question, perhaps to fill gaps in other records, then, no, the background check would not reveal the list would be wrong, it would return the results of relying on the list.
Now, what would happen in the real world today is that the first person to find out they were flagg
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Spamhaus could have list A, the spammer list. This is what the judge prevented them from putting e360 on.
So then they could have list B, the "list of people we wrongly suspected were spammers and have been ordered not to characterize as such, wink wink".
Then Spamhaus sends everyone lists A and B. Then everyone using Spamhaus's list to filter says, "Hey, why not just block A *and* B?" Spamhaus assists in this process by making the default when you sign up to be that you
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at YOUR site you can choose to drop any IP datagram you want. any. you are NOT required by law (ianal) to HAVE to receive (let alone read) any or all data that hits your site.
freedom means you have the right to allow or disallow anyone into your 'home' unless they have a warrant and are an official gov rep (eg, police).
in this case, spamhaus makes 'recommendations' (not unlike MS in yesterday's article letting the religious nutjobs tell
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That said, they're providing a service that their customers ask for. They clearly outline their criteria and let their customers decide if and how to use it. It seems to me that the spammers only have a legitimate complaint against the ISPs that use the Spamhaus data. Even then, it would be a ha
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Re:Still don't get it. (Score:5, Insightful)
I don't see the problem with keeping a list. If it is a bad list with too many false positives, then nobody would use it. Sheesh.
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Oh please, how many sites out there list "douchebag companies" and tell people not to buy from them? It is called free speech.
-matthew
Re:Still don't get it. (Score:5, Insightful)
Carl Sagan once sued Apple for calling him a "butt-head astronomer." Sagan lost the suit, because according to the judge:
I'm sure "douchebag companies" would fall into the same category.
Spamhaus' Register Of Known Spam Operations (ROKSO) is a list of "known professional spam operations that have been terminated by a minimum of 3 Internet Service Providers for spam offenses." That's a much more serious accusation than "butt-head" or "douchebag." If it's true, of course, then the plaintiffs can burn in hell... but they claim it's not true, and they've been falsely labeled by Spamhaus, which has damaged their reputation and cost them business.
Parent
Spamhaus? (Score:2, Interesting)
I can see it now: SPAMwurst, mit Kraut
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Also, I hear that doesn't have much Spamwurst in it.
Wouldn't work. (Score:3, Funny)
Spam, I suspect, would fall under the category of "cheese".
So, the next logical step is (Score:3, Funny)
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Woe be gone (Score:3, Insightful)
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Lets assume that these spammers actually have some kind of product (whether it works/does what is claimed or not is irrelevant, what matters is that they have a product) and are actually sending it out to people who buy from their crappy
If the place where the pills are coming from is located outside of the US, the drugs can be stopped in the mail (I believe mailing drugs into the US from outside of the US is illegal). If the place where the
I don't get it (Score:4, Insightful)
In reverse, is the do-not-call list something that will be targeted next?
Re:I don't get it (Score:5, Informative)
Because Spamhaus didn't show up in court to explain it. From Wikipedia:
Parent
and DoubleClick (Score:2, Interesting)
I can't remember the original source but it was a few years ago I read an article about spam. Very interesting, most of the cost of advertising went to the advertiser (as it should) with paper media. Not so with spam, almost all the cost of spam goes to the recipient and hardly any to the
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I think corporations that get spammed, including ISP's should be able to go to companys like DoubleClick and e360 and bill them for the aggregiate costs. "You sent 2 million emails through our network last month, here is your bill for 200k for bandwidth + costs for the end users"
unfortunately that same logic could be applied to other sites that the ISPs want to extort
"Hello Google, you sent x Gigabytes of data through our network to our customers, here's the bill for the bandwidth used..."
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Yet, I'm not.
Try using Firefox with heavy blockers. Even a tailored hosts file on your router would help, assuming you are running bind or something similar on your router.
e360 Insight should sue an ISP... (Score:3, Interesting)
They can't. (Score:2)
If an ISP was sued, both CAN-SPAM and the CDA gives immunity to the ISP for filtering and blocking. See White Buffalo Ventu
Huge gift (Score:2)
This is a HUGE gift from the appeals court.
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Linhardt is in trouble now. (Score:5, Interesting)
The reason for this is my case against him, at http://www.barbieslapp.com/spam/e360/timeline.htm [barbieslapp.com] , because in my case, I argued (and lost) personal juridiction of Linhardt, in part because he said (and the court believed it) that he had no business in California. I pointed out in his affadavit in the Spamhaus where he said "e360 and I lost contracts..." and "e60 and I lost business opportunities.." and that of the 7 companies listed, 4 are in California, he explained it away by saying that he really meant that when he said, e360 and I he meant e360 and I in my role as president. If you don't suffer harm personally, you have no standing to bring a lawsuit. I filed a motion for reconsideration, on Linhardt's personal jurisdiction, in part based on this.
Spamhaus's lawyers are aware of this.
Would this be evil/wrong? (Score:2, Funny)
1) Send a massive spam campaign selling pharmaceuticals (viagra, weight loss, zoloft, hair regrowth, you name it)
2) When the orders come in, send out authentic-looking prescription medication, but instead of medicine the pills are made of fast-acting poison.
3) Thousands of people who are stupid enough to actually respond to spam, buy medication from spammers, and ingest said medication, are killed.
4) Massive media coverage of the event makes spamming seem "dangerous" to t
Gotta love this judge (Score:2, Interesting)
He really had to work hard to "do the right thing".
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Spamhaus are not in any trouble because of what name they used, or even what they listed. They're in "trouble" on a technicality, they messed up their claim that this court has no jurisdiction over them (which it doesn't; they are not a US company and have no holdings or business in the US, so a US court can't do a damn th
Re:Satisfied customer (Score:4, Informative)
As a donation-funded non-profit organisation based in the UK and Switzerland, they don't do business in the US at present, never have, and are not particularly likely to do so in the future. They don't even have a tax-exempt status in the US. A US court cannot prohibit US citizens from donating to them, nor can they confiscate those donations. There really isn't anything that a US court can do to them.
Parent
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The UK courts are a lot more fun though, as it's a loser-pays system, so you can't just go randomly suing people unless you're prepared to pay both sides of the battle -- If you want to sue, you either have to be rich, or right.