You heard it here first: On Friday afternoon the California Federal Court denied a request by King of Spam Scott Richter and his OptInRealBig for an injunction against anti-spam organization SpamCop.
In its 20-page opinion, the Court tells Mr. Richter that he has been a very naughty boy indeed, including such choice tidbits as:
“During the May 18, 2004 hearing, the Court specifically requested a supplemental declaration from SpamCop that explained technical issues regarding how SpamCop’s software functions. The Court did not request the same from OptIn. Nevertheless, OptIn took the liberty of submitting not only supplemental declarations to bolster its arguments, but a supplemental brief regarding issues related to the Communications Decency Act. Notably, OptIn’s submissions were filed on May 25, 2004, a week after the Court held oral argument. Such uninvited submissions are inappropriate and violate the notions of fairness that underlie the judicial process. OptIn should be aware that future abuses of the judicial process may result in sanctions. The Court GRANTS SpamCop’s motion to strike the supplemental brief and declarations.”
The Court also found that SpamCop’s sending of complaints on to ISPs, which is at the heart of Richter’s lawsuit, is protected by the Communications Decency Act.
But our favourite part of the order is where the Court says, in response to Richter’s demand that SpamCop reveal the email addresses of those complaining to SpamCop about Richter’s email:
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“OptIn alleges that it provides opt-out links and honors opt-out requests. It is concerned that the registered users who are sending reports to SpamCop represent people whose opt-out requests have failed for some reason. It believes that it needs the e-mail addresses of those users in order to take corrective action to delete them from its bulk lists. If these registered users have opted-out, but the opt-out has failed and OptIn continues to send them e-mails, OptIn will be in violation of CAN-SPAM and subject to fines. OptIn has utterly failed to identify any law that would require SpamCop to divulge these e-mail addresses. In a way, OptIn’s request is analogous to one who either intentionally or unintentionally sends pornography to minors, who then asks for a list of those minors so he will not continue to commit the crime. The responsibility for complying with the Act and preventing the violations begins and ends with OptIn.”
Judge Armstrong also proved herself to be a master of understatment when she noted that “there is the fact that OptIn’s reputation precedes it.”
At this point, OptIn’s best bet would be to quietly dismiss their lawsuit. But don’t count on it. In our observations over the years, there has been one constant in these sorts of lawsuits: that there is a direct, non-inverse correlation between the intelligence quotient of someone appropriately accused of spamming, and the competence of their legal representation.
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I thought we always executed SPY’s
Nuff Said
Er, virus writing illegal? I thought only distributing (i.e. sending them out or running them so that they are spread) was illegal. Writing them though would be protected as free speech or at least legal in some sense. But perhaps I’m wrong.
As far as I am aware viral spamming (creating data for non-client centered benefit) is illegal. Fortunately these viral advertisers can be traced and imprisoned. Some of us are not offended by pornography or new toaster designs but any software which hijcks our computer and displays an unsolicited email is a virus. And virus writing is illegal.
Works for me.
Somebody should tell Aunty what those dumbquotes look like in a standard browser (which is not the “de-facto” standard, mind you)
Richter motion PDF referenced in the article is not found. I would like to read it.