Judges Berate Spammer For 'Incompetent' Litigation 143
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."'"
$27,000 is not that small (Score:5, Interesting)
"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: (Score:1)
Re:$27,000 is not that small (Score:5, Insightful)
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 (Score:5, Informative)
Spamhaus did in fact, not defend themselves. That is how the judgment was rendered in the first place.
Re: (Score:3)
Because the US courts have no jurisdiction over them. It would be unreasonable to expect them to respond, I know I wouldn't.
Re: (Score:2)
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.
I don't see how that works. Even if they get what they ask for and the damages are reduced to a nominal $1, all it shows is that e360 failed to show evidence of their damages. Spamhouse is still left open to copycat cases from (alleged) spammers who can show evidence of the damages they're asking for.
Re: (Score:2)
More interrestingly, it shows Spamhaus was unable to proof e360 were indeed spammers. Does that simply mean e360 were spammers but they simply couldn't get sufficient evidence or does it mean Spamhaus made a mistake that destroyed a non-spamming company?
Re: (Score:2)
Re: (Score:2)
Also keep in mind two other facts about this case:
If you're thinking about suing Spamhaus, you'd have to realize that not only do they have a lawyer that works for free (and fame), but no judgement in the USA will have any effect anyway.
US courts have no jurisdiction over the company, but I wonder whether, when the company doesn't pay, (alleged) spammers might go after the officials of the company? They would, more likely than not, be liable to extradition to the USA.
Re: (Score:2)
Re:$27,000 is not that small (Score:4, Informative)
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: (Score:2)
The beginning of the first trial should have been a dismissal for lack of jurisdiction.
While Spamhaus may have been foolish to thumb their nose at the imperialism of a US court trying to long arm them without proper power, the court never should have put them in such a position in the first place.
Re: (Score:3, Insightful)
Re: (Score:1)
All your questions and more can be answered by reading the damned article.
Your point being? ...
Re: (Score:2)
All your questions and more can be answered by reading the damned article.
Your point being? ...
seriously ? Thats your response ? Your too much of an idiot to read a reasonable sentence and understand its meaning ? grow up.
You must be new here. And you meant "That's" and "You're", not "Thats" and "Your".
Re: (Score:2)
He could be quoting from the article.
And in any case the articale really doesn't give any insight into to the mindset behind a judge's surprise at someone appealing a judgement which - to most people - seems huge.
Re: (Score:2)
Litigation is so expensive that you should just pay up when somebody sues you
for thousands of dollars and you lose?
FTFY. And yes... if it's only for a few thousand dollars, and you already lost the case in one court, appealing to a higher court isn't likely to help you much.
Re: (Score:2)
Peers (Score:1)
If you can't, then explain SCOX and all the patent trolls. See, it's perfectly reasonable for a spammer to assume he can do the same when his equally scummy peers are doing it all the time.
Re:Peers (Score:5, Insightful)
Re: (Score:2)
If SCO was a scam/troll or not is questionable when you look at the behavior before the end.
Re: (Score:2)
If SCO was a scam/troll or not is questionable when you look at the behavior before the end.
It originally was not. In fact, it used to be one of the more well-respected companies by the tech community that later came to revile it.
Re:Peers (Score:5, Interesting)
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.
Re: (Score:3)
Nintendo started making card games
Re: (Score:3)
Since a company is nothing but a piece of paper, unlike humans, they can be converted from one use to a totally different one.
So can people. And it honestly matters just as little if the mafia boss or drug lord did a honest day's work once before turning to crime, it's what they are now.
Re: (Score:3)
Re: (Score:2)
Re: (Score:2)
The lack of updates and SCO's habit of suing its own customers would have been pretty good hints to move to a different platform. Companies can be a bit flakey - such as Oracle when Ellison has one of his fancies, but SCO took the biscuit. The only way it could have been more obvious was if Darl McBride would have used SCO money to run weekly infomercials in he'd scream colourful abuse at his shoes before making sweet love to them.
Actually, I'd pay to see those infomercials! McBride probably wasn't flooded
Re: (Score:2)
According to Wikipedia and Linkedin, he was just hired as CEO of http://www.meinc.biz/AboutUs.aspx [meinc.biz] (and Wiki implies he took along IP purchased from SCO Group) http://www.linkedin.com/profile/view?id=2173463&authType=name&authToken=0Ec_&locale=en_US&pvs=pp&trk=ppro_viewmore [linkedin.com]
Ridiculous (Score:5, Insightful)
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.
Re: (Score:1)
Re: (Score:1)
I think you meant to say "Filesharing and attempting to stop spam are ... not comparable"
The defendants in this case are people who are attempting to stop the transfer of information to people who don't want it, rather than people who are attempting to transfer information to people who do want it and/or attempting to get information they do want.
Re: (Score:3)
Yes, in the case of file sharing the content industries have bribed the Congress into granting them statutory damages. The spammers haven't been nearly as industrious... yet.
Re: (Score:2)
I'm glad the judge put the boot ito it right from the outset though, which no doubt has nothing to do with the amount of junkmail in his (and everyone's) inbox every morning.
Spammers, Music Industry, Patent Trolls (Score:4, Insightful)
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!)
Re: (Score:2)
I think that's still dodgy. We all know that a product is more than just one patented component. People buy products, and that depends on marketing, all-around specs, pricing, support etc. There's really no guarantee that a
Why isn't this done more often? (Score:2)
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...
Re:Why isn't this done more often? (Score:4, Insightful)
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: (Score:2)
That is an important thing to remind people of who support that "tort reform".
I'm a Canadian. Working in the USA I started to get a feeling why there are so many lawsuits. You go to work and it really is seen as a sort of individuals competitive duty to maintain their own safety standards. There is a desperation and lack of regard for safety rules unless they are legally mandated (and then they are enforced like crazy like putting baby warning stickers on every random plastic bag as if that would be helpful
Re: (Score:2)
He called, uphill.
Alas, (Score:5, Interesting)
Re: (Score:2)
Re: (Score:3)
Re:Alas, (Score:5, Insightful)
...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: (Score:1, Offtopic)
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".
That's right but you're still wrong as you can sue for specific performance [wikipedia.org]. The court could order the violator to follow the terms of the GPL (ie, stop distributing or make the source code available).
Re:Alas, (Score:5, Informative)
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: (Score:1)
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 copyr
Re:Alas, (Score:5, Insightful)
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: (Score:2)
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. (...) Otherwise, copyrights set to expire after X years could be extended indefinitely through acts of Congress, thus rendering "limited times" a meaningless term.
If you say X+n years on new works is constitutional then that means X+n years has always been within the definition of "limited times", even if past laws have had shorter protection. The whole reductio ad absurdum argument relies on the flawed assumption that if one copyright extension is constitutional, then they are all constitutional thus leading to indefinite copyright.
The logic here is like saying that if Congress could raise fines they could raise them excessively high which would violate the 8th amen
Re: (Score:2)
Isn't that what I said? The copyright clause has nothing to do with X years being "limited" and X+n years being "unlimited".
If extending copyright on existing works falls within the bounds of the US Constitut
Re: (Score:2)
No, you're (partially) wrong. The official position was both that X+n years counts as "unlimited" AND what you said. The head anti-copyright extension lawyer, Larry Lessig, explains it well in chapters 13 and 14 of his book Free Culture [amazon.com].
How could a finite n
Re: (Score:2)
I just don't see how any finite number of years would count as unlimited under any reasonable definition of the word "unlimited". We could of course argue whether or not a certain number of years constitutes a reasonable limit, but that's a different argument than limited vs unlimited.
Re: (Score:2)
A trillion year copyright would reasonably be called "unlimited". Do you disagree? I think this would be pretty obvious to the average person.
My apologies if I'm unfairly stereotyping you, but I think the confusion is just because Slashdot is filled with math-professor and computer programmer types. If you are writing a computer program, you have to assume the computer will ta
Re: (Score:2)
Yes, I disagree. I think you're using the word "unlimited" as a substitute for "too large a limit".
If instead of focusing on limited vs unlimited we interpret "for limited times" as mandating a reasonable upper bound, an argument against a trillion year copyright can surely be made. Then again, an argument against "70 years plus the life of the author" can also be mad
Re: (Score:2)
For copyright, it's a simple answer: anything that is copyrighted for longer than the author is alive, is, for the author at least, infinite in time.In other words, anything longer than 120 years (about the longest time anyone has ever lived), and that should break the definition of limited copyright. Granted, that's longer than what I consider useful, but it's at least a limit.
It is possible to extract useful meaning from semi-vague documents like the Constitution, if one is willing to see them as guides r
Why Copyright After You're Dead Still Makes Sense (Score:3)
Back in the 80s, 88-year-old Helen Hooven Santmyer [wikipedia.org] published And Ladies Of The Club [wikipedia.org], a novel which became a New York Times best seller.*
Having the term of copyright extend past the author's death still makes sense, and doesn't violate the concept of "limited time". Publishers pay authors based on how much money they expect to make selling the book (or program or whatever.) Some of that money is an advance, and some of it's royalties as copies of the book get sold. Under the current system, the publisher
Re: (Score:3)
Following your logic, a fixed definite copyright term makes more sense than one based on the author's span. If all works got a 30, 50, 70, whatever year copyright term, then some copyrights wouldn't be worth less due to a shorter duration. And determining whether a work is still under protection would be easy, as all you need to know is the publication date of the work.
Re:Posner wrote 40 book (Score:2)
Wow, Note to self to save $100 aside to buy some five of them sometime.
Re: (Score:3)
Hmm, who to take the word of... a respected judge, or an anonymous person with nothing but uncited claims.
If we are just going to Appeal to Authority, what is the point of even reading the news? Is it possible that people in authority make mistakes or have biases. I know we've never seen it, but is it conceivable? [wikimedia.org]
Judge Posner has spoken!
Re: (Score:2)
I have it on good authority that you can reduce embarrassment by clicking the link before posting a comment.
Re: (Score:2)
Hi. Apparently you don't know what the "Appeal to Authority" fallacy is. Appeal to fallacy is when you cite me as a qualified source on rocket science just because I am a distinguished porn star with a 14" penis.
Actually, wouldn't that be an appeal to "phallusy"?
Posner = egocentric, conservative jerk (Score:2)
As long as we're judging the source (aka the judge), let me say that I've actually read one of Posner's books, and he struck me as a raging egocentric jerk. His "Public Intellectuals: A Study in Decline" argues that no one should ever speak out on anything but his subject of expertise, and yet the entire book is an example of him doing just that (posner [obsidianrook.com]). I've also seen him engage in some sleazy
Re: (Score:2)
Over the course of my academic career I have met many egocentric jerks. My general conclusion on the matter is that there is no correlation between the jerkiness and the competence of the individual.
Re: (Score:2)
"no correlation between the jerkiness and the competence of the individual" Perhaps not (though actually I suspect there is some, and it is not a positive one), but if you managed to read more than the title of my post, you would realize I was pointing out prior occasions where Posner has made public pronouncements that are dubious at best.
Some jerks may indeed be reliable sources, but Posner is not one of them.
Re: (Score:2)
That is well short of being the consensus opinion.
Beautiful response (Score:2)
A beautiful response... though you should perhaps have added "You ignorant dick." at the end.
Re: (Score:1)
Re: (Score:2)
Re: (Score:2)
Have you ever told anybody "You can't say that [in here|to him]!" or likewise, only to hear the reply "O RLY? Well I just did!"?
Thing is, the word "can" is ambiguous. It encompasses capacity to perform an action, but also an element of permission and/or the acceptability of said act.
Strictly, the latter usage should be covered by "may", which is much more common in American English. They
Re: O RLY? Well I just did! (Score:2)
Disapproving Judge is Disapproving.
Re: (Score:2)
Re: (Score:2)
Patents legally make you not a "nothing" company. The legal rules surrounding patents are horrible, but that's why your analogy is a poor one. You're almost right that anyone can sue anyone for just about anything (the notable exception is "vexatious litigants [wikipedia.org]"), but cases can be, and frequently are, thrown out upon arrival. But if you have a patent to wield, the court, unfortunately, is almost forced to treat your claims with some respect. Microsoft (of all people) tried to get this changed in the dire
Re: (Score:2)
Unfortunately, judge posner, and most appeals court judges, rarely ever see patent cases. Nearly all patent cases go to a special appellate court, and so most patent law & policy is set by the small group of perhaps myopic judges on the federal circuit. The fed. cir. doesn't benefit from the diversity of opinions that other appeals court enjoy.
Par for the course (Score:1)
Possibly career ending for this litigator (Score:4, Interesting)
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: (Score:2)
This will have exactly zero effect on the litigator's career, because nobody does any research on attorney performance in court. Attorneys lose all the time (one loses in every trial), and it doesn't affect their ability to get other clients.
There's an old joke about an attorney who loses at trial, and has a big smile on his face. When asked why he was smiling, he said, "Because now my client has to pay me for the appeal."
Being a litigation attorney is the closest thing to absolute job security you can ge
Re: (Score:1)
I took the name "Legal Troll" as a reference to the reception people displaying any knowledge of the law often receive on this website – they are treated as a troll or ogre – especially when saying anything in defense of intellectual property rights or anyone who attempts to enforce or uphold them.
Many lawyers feel this way about Judge Posner and his insistence on always attempting to understand and explain legal arguments and concepts in terms of money. You are free to remain ignorant of this,
Reducing the damages? (Score:2)
That is odd, even if it is to $1, doesn't it mean, the defendant admits that there was damage?
This was a default judgment. (Score:2)
You have to keep in mind, this was admitted by their withdrawing the answer and accepting a default judgment.
Re: (Score:3)
Re: (Score:3)
Rediculous - Spamhaus should outright win. (Score:2)
Re: (Score:2)
Re: (Score:2)
This is the sign things are not going your way. (Score:5, Interesting)
But, what is interesting is the e360Insight, LLC, v. ChoicePoint Precision Marketing, LLC case. [spamsuite.com] 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.
The Spammers next step will be (Score:1)
to get an arrest warrant on SpamHaus and then go to the UK and start extradition proceedings.
You jest?
If someone who just links to stuff can be extradited and face trial for a criminal offence then nothing is beyond fantasy for the US Legal system.
OMG a judge... (Score:2)
Why not? (Score:2)
'You can't just come into a court with a fly-by-night, nothing company and say "I've lost $130 million."'"
Why not? Big Content is doing it on a daily basis [google.com].
Re: (Score:1)
Why Not ? (Score:3)
RIAA and the MPAA claim damages in the trillions, more than their industries have ever made. I don't recall hearing any judges berating them.
Re: (Score:3)
27,345,357 unique messages from E360 blocked (Score:5, Insightful)
In his original complaint http://www.spamsuite.com/webfm_send/357 [spamsuite.com] 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: (Score:2)
No not because they put in random words to bypass filters (which is a violation of CFAA and California Penal Code Section 502), but because they are unsolicited.
Just because someone buys a list with your name on it does not mean that they have permission.
I thought that was the point of our legal system (Score:3)
I thought nothing companies were entitled to the same justice as the big shots. Isn't that much of the point of our judicial system?
e360 should have had expert testimony (Score:2)
Spamhaus did what sounds like just about the least they could bother to do in response --accept an offer of free legal representation. Kish spent three days back before the trial court looking more closely at that $11.7m number.
Then, he
Re:Makes me sympathise with the spammer (Score:4, Insightful)
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?
Re: (Score:2, Insightful)
Judge's behavior does not indicate bias. e.g. your signature says you have the world's hardest puzzle game - that's free speech. But if you want to litigate, and base damages on your 'hardest puzzle game in the world', then you better be capable of showing that you have surveyed the world and have a reason to say it is the hardest.
This maybe biased (like the judge) but I think the spammer's argument has as much water as your signature.
Re:Makes me sympathise with the spammer (Score:5, Insightful)
Re: (Score:2)
Judges quite often make comments like this, I'm afraid if you had visions of any legal system as a solemn and sober affair you've got another think coming. Our local newspaper used to have a weekly column about the running commentary of the district judge on various colourful characters, very entertaining stuff.
Re: (Score:2)
Signatures weren't being appended correctly. Line breaks were omitted.