Anti-Spam Lawyer Loses Appeal, and His Possessions

Techdirt is reporting that one particularly rabid anti-spam fighter has not only lost his case, but most of his worldly possessions as well. James Gordon tried to set himself up as an ISP to get around the conventions of the CAN SPAM act in order to set up a litigation house designed to sue companies that spam. Unfortunately a judge did not take kindly to this trick and ordered him to pay $110,000 to the firm he was suing, a decision that was not only upheld on appeal but accompanied by some very unkind words trying to shut down litigation mills like his. "But, perhaps even more fascinating is that the guy, James Gordon, didn't just lose the lawsuit, it appears he lost most of his possessions as well. Remember that ruling telling him to pay the $110k to Virtumundo? He refused. The company sent the debt to a collections agency, but told Gordon they'd call off the collections agency if he dropped the appeal. Gordon didn't."

Re:He should have set up a company to sue for him

[digitalunity]

Stone v. Frederick Hobby Associates II, LLC, 2001 Conn. Super. LEXIS 1853,
Superior Court, judicial district of Stamford-Norwalk, at Stamford, Docket No.
CV000181620S (July 10, 2001) (Mintz, J.),

Using an LLC to shield yourself from fraud doesn't necessarily work. As always, YMMV, IANAL, subject to jurisdiction, etc.

The title is wrong!

[Anonymous Coward]

James Gordon is not a lawyer.

Standing

[Estanislao Martínez]

The spammers are violating the law by spamming.

For the court to be able to act on this assumption, it needs to make a finding of fact to that effect. Before such a finding of fact can be made, other aspects of the complaint must be evaluated. For example, the plaintiff needs to actually be entitled to pursue the complaint they are making.

So basically, in this case, the law says that to pursue a case against a spammer, the plaintiff must be an ISP. Before the court can decide whether the party being accused is actually spamming, it must determine whether the plaintiff is an ISP. The plaintiff failed that requirement, according to the court, case closed.

This may sound annoying to you in this one case, but really, this needs to be the case, in order for the legal system to throw out bad cases quickly. Read up on standing [wikipedia.org].

Re:Because you don't like it doesn't make it illeg

[DragonWriter]

Is protecting your right to not receive spam abusing the law? Is there something illegal about being a professional litigant? I thought we called them lawyers.

No. A litigant is (in the context used here) a party to a lawsuit, not the attorney representing them.

Re:People do this for Faxes too

[amicusNYCL]

Should setting up shop in order to take advantage of a law against spamming be allowed? HELL YES it should!

Maybe so, but CAN-SPAM makes specific provisions for who can sue and who can't sue.

Is the a provision in the CAN SPAM act that says you can't do this?

Yes, it says that only "Internet access providers" are allowed to sue for damages, and that they need to illustrate that the damages are the result of the spam and not simply the cost of normal network operation.

Is there any law, federal or state, that says you can't do this?

Many states set up their own anti-spam laws after CAN-SPAM (which CAN-SPAM was specifically trying to preempt), the judge in this case ruled that CAN-SPAM does in fact preempt the Washington State laws that Gordon was also using in the suit.

The bottom line is that someone set up a "honey net" for profit via the judicial system.

Right, and that is specifically what CAN-SPAM was trying to prevent - allowing any private person to sue any company for spam. This is why you must be an ISP to sue, and why you have to show damages directly related to the spam. Congress was afraid that if that provision were left out that it would harm legitimate marketers who would be sued by private people just because they didn't want to receive the marketing (even though it might be legally allowed). So yes, the reason the judge ruled against Gordon is because the judge realized that he set up a honey pot specifically to receive spam so that he could sue over it, and was not in fact a bona fide ISP sustaining actual damages from the spam. It should also be noted that Gordon had 10 other lawsuits pending in the same Washington court alone, and his entire income for 2006/2007 came from settlements and disputes. Apparently his "free email service" at gordonworks.com is also now offline.

Congress did not pass CAN-SPAM to enable people to make a living off of suing other people over advertising. That's what Gordon was doing, and that's why the judge tossed it out.

Re:Morton's Fork

[m.ducharme]

Civil law systems aren't necessarily better than common law systems, just different. And the point is moot, because civil law systems are evolving to incorporate features of the common law, and common law systems are evolving to to incorporate features of the civil law.

Also, you should be more careful with your distinctions. The opposite of the adversarial system is the inquisitorial system, which can exist in either the civil or common law. Inquisitorial systems have problems of their own as well.

Civil law systems are fully compatible with an adversarial process: Quebec is just such a jurisdiction where there is a civil code, but an adversarial process.

Re:Capable of Filtering The Large Amounts of Spam

[Czmyt]

I appreciate your listing what you think is a better solution. Why would your editor not whitelist your e-mail address through the Postini Web-based config page? I have not used SpamAssassin for three years now. It does not seem to have changed too much since then. Back then in 2006, I was using SpamAssassin for a medium sized business client. I had it configured with all of the possible options: Using all of the DNSBL lists that were available at the time except for SPEWS and couple of other very aggressive ones, using Razor/Pyzor, Bayesian filtering, extensive whitelists of their customer contacts, and frequent updates to SpamAssassin itself. I went through and configured and tested all of the features and monitored it to make sure that it was working. It never approached the level true positives that we achieved when we switched to Postini. There were lots of false positives too, more than we ever had with Postini. Plus I spent some serious time maintaining SpamAssassin that I no longer needed to spend with Postini. For people with new Postini accounts, I think that it is important to check their Web-based junk mail folder weekly and whitelist any false-positive messages they find. But once you have done that for a couple of months, I find that there are very few false positives after that. I spot check my Postini junk mail folder every two or three months just to make sure there are no false positives that I need to whitelist.