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."'"
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:$27,000 is not that small (Score:3, Insightful)
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:Peers (Score:5, Insightful)
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: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: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:Makes me sympathise with the spammer (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.
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:Makes me sympathise with the spammer (Score:5, Insightful)
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"?
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!)