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Appeals Court Tosses $11M Spamhaus Judgement

kdawson posted more than 6 years ago | from the still-say-you're-a-spammer dept.

Spam 134

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."

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134 comments

frist psot (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#20479553)

I WIN

So It's A Double Negative You Want, Eh? (1, Funny)

Anonymous Coward | more than 6 years ago | (#20479557)

In a not unexpected move...
I don't think it isn't impossible to misunderestimate when a non-judge will unpredictably overrule a malignant case.

Oh yeah? (4, Funny)

toleraen (831634) | more than 6 years ago | (#20479571)

In a not unexpected move...
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...

Re:Oh yeah? (4, Funny)

GweeDo (127172) | more than 6 years ago | (#20479683)

Could you not un-use more double negatives in that one post?

Re:Oh yeah? (0)

Anonymous Coward | more than 6 years ago | (#20479817)

I don't think that wasn't not his point of not showing how not there wasn't not enough double negatives.

Re:Oh yeah? (1)

QuickFox (311231) | more than 6 years ago | (#20480635)

Oh for crying out unquietly!

Re:Oh yeah? (1)

ookabooka (731013) | more than 6 years ago | (#20481281)

Of course he could have, he could have used an infinite number of negations. . or rather, he could have (not^(2n)) used an infinite number of negations. Where n is any whole number greater than 0.

Re:Oh yeah? (3, Funny)

Futile Rhetoric (1105323) | more than 6 years ago | (#20479743)

Would the term doubleplusexpected be more to your liking?

Re:Oh yeah? (1)

toleraen (831634) | more than 6 years ago | (#20479869)

If using Newspeak gets rid of the double negative, I'm all for it.

Re:Oh yeah? (3, Insightful)

misleb (129952) | more than 6 years ago | (#20479979)

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.

-matthew

Re:Oh yeah? (0)

Anonymous Coward | more than 6 years ago | (#20481411)

Don't you mean not unexpressing the meaning?

Re:Oh yeah? (3, Informative)

nickname225 (840560) | more than 6 years ago | (#20479999)

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.

Re:Oh yeah? (0)

Anonymous Coward | more than 6 years ago | (#20480127)

Btw - I am an attorney.
We don't need their scum.

Re:Oh yeah? (0)

Anonymous Coward | more than 6 years ago | (#20480193)

Btw - I am an attorney.
 
And you just gave legal advice...
 
GOTCHA! ;)

Re:Oh yeah? (4, Informative)

tinkerghost (944862) | more than 6 years ago | (#20480351)

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.

Sort of (4, Informative)

www.sorehands.com (142825) | more than 6 years ago | (#20480481)

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.

Re:Oh yeah? (1)

nickname225 (840560) | more than 6 years ago | (#20480957)

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 complex topic and many, many thousands of pages have been written about it. At first glance, Spamhaus may well be subject to U.S. jurisdiction - they would have had to fight it out to determine. But, once they made a general appearance (as opposed to a special appearance to challenge jurisdiction), they submitted to the jurisdiction of the court and had to fight it out on the merits. Making just enough of an appearance to submit to jurisdiction and then deciding not to contest on the merits is generally a losing formula.

Re:Oh yeah? (1)

pilgrim23 (716938) | more than 6 years ago | (#20480353)

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.

Re:Oh yeah? (1)

networkBoy (774728) | more than 6 years ago | (#20480783)

So it's a broken PLL then. A working PLL in beneficial as it can smooth a jittery clock or re-time the clock to a different frequency multiple.

Re:Oh yeah? (0)

Anonymous Coward | more than 6 years ago | (#20480901)

involved not envovled, lose not loose, bear not bare, beneficial not benifical

Re:Oh yeah? (1)

pilgrim23 (716938) | more than 6 years ago | (#20481447)

Dats dae Beau-te-fool ting 'bout Amurka

Yous don like it? Sos Sue Me!

Re:Oh yeah? (1)

OrangeTide (124937) | more than 6 years ago | (#20481445)

Some states make the loser pay. People forget that the US is not a homogeneous nation. And that at one time States were actually states and had pretty free authority over their own governance, including their judicial system.

Re:Oh yeah? (0)

Anonymous Coward | more than 6 years ago | (#20482767)

Some states make the loser pay.

Which is why people like spammers file suit in the other states. There's one court in Texas that loves patent suits and so all the patent trolls sue there.

Re:Oh yeah? (1)

OrangeTide (124937) | more than 6 years ago | (#20482981)

You aren't totally free to choose where you file your suit. And it is possible for one court to override the jurisdiction of another court, even if you file after the other. It's all very complicated, and unfortunately it seems only the attorneys benefit from this system.

Next up (5, Funny)

UPZ (947916) | more than 6 years ago | (#20479605)

Anti-virus company gets sued by Win32Trojan maker for 'loss of business'

Spam the Judge Haus? (1)

Prysorra (1040518) | more than 6 years ago | (#20479619)

Anyone know the email of the judge that would charge him money? ...

Err.... :D

Still don't get it. (4, Insightful)

BubbaFett (47115) | more than 6 years ago | (#20479735)

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?

Re:Still don't get it. (3, Insightful)

fbjon (692006) | more than 6 years ago | (#20479919)

Presumably not if you advertise it as being reasonably accurate for some specific purpose.

Re:Still don't get it. (2, Insightful)

misleb (129952) | more than 6 years ago | (#20480217)

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.

-matthew

Re:Still don't get it. (1)

r3m0t (626466) | more than 6 years ago | (#20480763)

I'm going to create a list of murderers.

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.

So is it OK with you if I put you on the list?

Re:Still don't get it. (1)

michrech (468134) | more than 6 years ago | (#20481195)

Certainly. A simple background check (which has been done at every job I've ever held) would reveal your list to be shite, and I'd still get the job (assuming I was qualified, had good references, blah, blah, blah).

I'm going to create a list of murderers.

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.

So is it OK with you if I put you on the list?

Re:Still don't get it. (1)

OrangeTide (124937) | more than 6 years ago | (#20481481)

I very rarely have to go through a background check. But anyways if he were to make a list of lazy employees, or a list of employees that steal pens. That's not going to show up on a background check. And if a company actually used this theoretical list, they would not even spend the money on the background check anyways, they wouldn't even bother with an interview.

Re:Still don't get it. (2, Insightful)

DragonWriter (970822) | more than 6 years ago | (#20483173)

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 flagged would file, and win, a rather substantial defamation lawsuit that would put the company running the list out of business, assuming that there wasn't a reasonable basis for them being listed on the list. But you seem to oppose the very laws that punish such lies.

Re:Still don't get it. (1, Redundant)

garcia (6573) | more than 6 years ago | (#20479929)

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?

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). If you chose to have your douchebag database on your own machine and blocked away w/o telling anyone anything about it, it would be fine.

Unless you can prove to a judge that Microsoft, SCO, and Apple are all douchebags then I suggest that you don't go forward with that plan or you might end up with an 11 million dollar judgment against you.

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20480009)

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).
What if you don't tell everyone to block them, but instead suggest that mail admins *may* want to use your database as one piece of information they use in deciding whether to block traffic ... and that you take no responsibility for the actions of those individual mail admins?

Re:Still don't get it. (1)

ajs (35943) | more than 6 years ago | (#20480063)

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 hard sell, since the blocking of spammers is one of the selling points for ISPs.

Re:Still don't get it. (1)

A beautiful mind (821714) | more than 6 years ago | (#20480093)

So you're saying, barring the Apple part, that slashdot is in trouble?

Re:Still don't get it. (4, Insightful)

SCHecklerX (229973) | more than 6 years ago | (#20480111)

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.

Re:Still don't get it. (2, Insightful)

misleb (129952) | more than 6 years ago | (#20480357)

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.

-matthew

   

Re:Still don't get it. (4, Insightful)

Phroggy (441) | more than 6 years ago | (#20481209)

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.

Re:Still don't get it. (1)

msslc3 (846991) | more than 6 years ago | (#20482209)

Exactly right. This should be modded up.

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20479937)

"Shouldn't I be able to list any domain or IP in any database I please?"

Yes, but once you start categorizing something arbitrarily as spam or otherwise, then you are making a judgment choice and announcing to the world your decision. Especially coming from a position of authority.

For instance, as an AC I say BubbaFett is a child molester, it will probably be ignored by most even if you are offended. If I were to say this using my real name, it might be noticed more and have some more authority. If I were a prosecutor or maybe a member of an organization that rids the interweb of pedophiles, even more so...and I'd be taking a real risk of getting sued (and rightfully so).

I really don't know the ins and outs of this case -- but as someone has more authority, they will have to convince others that their designations are in fact correct and legitimate. They probably are spammers -- but so many spammers try to stay on the letter of the law, all the while violating the spirit of the law, that they think that they should not be classified as such. Maybe Spamhaus needs to relabel their service with different rankings like SPAMMER, CON_ARTIST, MAFIA, YOUR_PENIS_GROW_BIG or ANNOYING MOTHERFUCKING TWITS THAT I DON'T WANT IN MY MAILBOX. I'd rather be called a spammer than an annoying twit -- but one is pretty much a statement of fact while the other is an opinion. The law doesn't deal with opinions (or at least shouldn't), so they would be safe.

Who knows...

Re:Still don't get it. (1)

UbuntuDupe (970646) | more than 6 years ago | (#20480083)

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 receive A and B.

But the judge probably wouldn't fall for that.

On a related note, how does spammer litigation ever get this far? I'm not advocating anything, but why haven't vigilantes gone after these guys now that they're visible?

Re:Still don't get it. (1)

plague3106 (71849) | more than 6 years ago | (#20480197)

No, you're still responsible for failing to keep a list up to date or whatever. I ran into this recently; we had an IP blacklisted, but the lister disappeared. So emails (order confirmations) were being bounced due to the black list, and it was impossible to get off the list.

Its like slander or liable; just because you say its spam, doesn't make it true. You can't setup any arbitrary rules you like, and say anything that violates them is spam without some kind of proof. Getting an email you didn't want doesn't equal spam.

One step ahead of the shoe-shine... (1)

edittard (805475) | more than 6 years ago | (#20480745)

Its like slander or liable
# Its like word's you never read in the Biable #

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20480467)

If there is one thing i have learned in 25 years as an American, it is that we don't take personal responsibility for jack shit. Everything is the other guys problem and my lawyer will prove it.

Re:Still don't get it. (1)

TheGratefulNet (143330) | more than 6 years ago | (#20480549)

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 each other what is 'ok' to watch on tv and what is not). the local sysadmin uses that list WITH MODIFICATIONS (site specific) and then mail comes in and some mail gets dropped.

how is this illegal? there is no LEGAL right to have your crap^Hmessages sent to people who don't want them.

that's really the whole issue here that's being masked. its not about stopping the bad act (which is an act of goodness) but its the bad act (spam) ITSELF that should be the issue.

the courts can't manage to insert 4 AA batts the right way; how can we expect our courts to deal with subtleties like spam, IP datagrams, DNS issues and so on?

this should not be determined by 'regular courts'. they're just too ignorant of the actual issues to make informed decisions.

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20482295)

I'd recommend you read up on John Henry Faulk [wikipedia.org] .

Re:Still don't get it. (1)

Kjella (173770) | more than 6 years ago | (#20480689)

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 SpamHaus made the claim without the evidence to back it up.

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20481617)

I haven't looked this one up, but Spamhaus provides beaucoup information regarding what it lists.

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20481897)

This is a default judgement (the defendant didn't show up), so the facts of the case don't matter.

Re:Still don't get it. (0)

Anonymous Coward | more than 6 years ago | (#20481957)

So I should be able to put your name in my database of child molesters and it's up to the people who use the list to realize you aren't one?

Nope, this list is a public accusation of being a spammer, and as such people have a right to demand that they are not falsely accused. The only real breakdown here is that the accusation wasn't false. It would only have taken a few seconds in court to clear that up if Spamhaus had bothered.

Re:Still don't get it. (1)

DragonWriter (970822) | more than 6 years ago | (#20482939)

Shouldn't I be able to list any domain or IP in any database I please?


Listing a domain or IP in a database is making a claim about it. Should anyone be able to claim anything about you, regardless of truth or falsity, regardless of the resulting harm, with the responsibility only on the listener to decide if it is true or false? Perhaps they should be, but it is pretty well established that there are boundaries to this in general, hence laws regarding slander, libel, etc., and I don't see any reason that an online database should be an especially privileged means of making and publishing such claims, whether the current rules or some alternate set are applied generally.

Spamhaus? (2, Interesting)

Enlarged to Show Tex (911413) | more than 6 years ago | (#20479897)

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!

I can see it now: SPAMwurst, mit Kraut

Re:Spamhaus? (1)

Adambomb (118938) | more than 6 years ago | (#20481143)

Shouldn't that be Spamwurst, Spamwurst, Ei und Spamwurst, mit Kraut?

Also, I hear that doesn't have much Spamwurst in it.

Wouldn't work. (2, Funny)

jimicus (737525) | more than 6 years ago | (#20482765)

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".

So, the next logical step is (3, Funny)

aim2future (773846) | more than 6 years ago | (#20479923)

that I get sued by the spammer if I reject their spam

Re:So, the next logical step is (1)

simong (32944) | more than 6 years ago | (#20479997)

I'm looking forward to Google suing me for using Adblock Plus with Firefox.

Re:So, the next logical step is (1)

reebmmm (939463) | more than 6 years ago | (#20481191)

IAAL, and, frankly, nothing stops a company like e360 from suing you, or, indeed, winning if they are able to obtain a default judgment like in this case. The reason why that seems genuinely unlikely is because you're not a big target and any damages would be pretty small.

Reading the opinion, the judge seemed to recognize that Spamhaus availed itself of the U.S. court systems and then, in a really stupid move, wanted out and gave up its rights in the process. Unsurprisingly, it lost at the district court, and Spamhaus was amazingly well-advised by the judge of the result of its actions at the time. Spamhaus only then got mad when it realized that it in fact might be subject to sanctions by the courts.

The 7th circuit gave Spamhaus a lot to be thankful for. And this opinion leaves a lot open for the district court now. Among other things, on remand to the district court, the district court has to:
1. do a better job of fact finding with regards to damages; and
2. go through the full analysis regarding injunctive relief.

What's also interesting about the injunctive relief decision is that while spamhaus may not use the same criteria to list e360, they can come up with a new and different reason to re-add them to the list.

Woe be gone (2, Insightful)

packetmon (977047) | more than 6 years ago | (#20480019)

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.

Re:Woe be gone (1)

Stu101 (1031686) | more than 6 years ago | (#20480577)

Thing is, it's not the "proper" drug companies that are doing it. *IF* it was indeed viagra, it would probabily be a generic back street marketed version.

As for "herbal" viagra, well there such a wide definition, it could literally be anything, and anything from anywhere.

Also a lot of the spam for porn sites is actually known about by the companies who own the porn sites. Plausable deniability.

Re:Woe be gone (1)

jonwil (467024) | more than 6 years ago | (#20481141)

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 pills are coming from is located inside the US then the places they are being sent from could be shut down for not having a license or something. If enough people bought these "generic drugs" and didnt actually get them, they might care enough to complain to the supplier.

Also, maybe an advertising campaign funded by the FDA and/or the big drug companies (remember, people who are spending money to try and get "Generic Viagra" or "Herbal Viagra" or whatever are depriving companies like Pfizer of income plus in some cases people mistakenly associate the crappy "generic" drugs with the companies that make the real thing and that would be bad.

The ad campaign would basically be TV ads/letterbox drop/whatever that would warn people of the risks/dangers (e.g. receiving wrong product, receiving product that hasn't been fully tested etc) of using these "generic medications" (although the danger is that it could backfire with people thinking its just a way for the drug companies to shut out the competition and keep prices high)

Re:Woe be gone (1)

jimicus (737525) | more than 6 years ago | (#20482863)

If enough people bought these "generic drugs" and didnt actually get them, they might care enough to complain to the supplier.

This is only a wild guess, but I'd imagine someone that's too embarrassed to ask their doctor for viagra is hardly going to write a letter of complaint to (or, indeed, telephone) a total stranger and say "Dear Sir, I can't get it up".

Re:Woe be gone (1)

jimicus (737525) | more than 6 years ago | (#20482797)

Sue the damn pharmaceutical companies for allowing their advertisers to break laws.

Seeing as Viagra is still very much under patent protection, I think it's safe to say that any "generic" alternative on general sale in the Western world is likely not an alternative at all, and may contain pretty much anything.

Now I think of it, I'm pretty certain rat poison (at least as sold in the UK) has a distinct blue colour. I wonder....

Re:Woe be gone (1)

qweqwe321 (1097441) | more than 6 years ago | (#20482961)

Won't work. In order to have standing to file a suit you have to have been significantly harmed by the person/entity you're suing. Otherwise the opposition will just write a demurrer-- the legal equivalent of "so what?" because you don't have a claim worth fighting over.

I don't get it (3, Insightful)

SCHecklerX (229973) | more than 6 years ago | (#20480029)

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?

Re:I don't get it (4, Informative)

DaleGlass (1068434) | more than 6 years ago | (#20480175)

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.

Re:I don't get it (1)

SCHecklerX (229973) | more than 6 years ago | (#20481211)

Good point. I had forgotten about that. But still...

Huh?! (0, Flamebait)

rjstelling (27409) | more than 6 years ago | (#20480031)

> The original judge could still impose a monetary judgement

No he couldn't, because however much you Americans think you run the world US laws [currently] does not extend to the rest of us :D

Re:Huh?! (1)

R2.0 (532027) | more than 6 years ago | (#20480191)

Yes, he could, because Spamhaus submitted to that court's jurisdiction. they shouldn't have, but they did. And one can't make an argument that jurisdiction doesn't apply after a ruling goes against you.

Spamhaus's lawyers screwed up, bad. They could have made the jurisdiction argument up front, and this would all have gone away. Perhaps they should sue their lawyers, but that doesn't mean that they are not subject to the judgement of the court that those lawyers acknowledged had jurisdiction (although inadvertently).

Re:Huh?! (0)

Anonymous Coward | more than 6 years ago | (#20482241)

Maybe they should have hired American lawyers.

Re:Huh?! (1)

jimicus (737525) | more than 6 years ago | (#20482949)

And one can't make an argument that jurisdiction doesn't apply after a ruling goes against you.

IANAL, but I'm pretty sure that where you're named as the defendant in a civil case taking place in another country, you can pretty much decide to do what you like with the judgement, including wipe your bottom with it.

Problems only start if you wish to travel to that country at a later date.

Re:Huh?! (1)

DragonWriter (970822) | more than 6 years ago | (#20483103)

IANAL, but I'm pretty sure that where you're named as the defendant in a civil case taking place in another country, you can pretty much decide to do what you like with the judgement, including wipe your bottom with it.

Problems only start if you wish to travel to that country at a later date.


Well, no, if you have assets or business dealings in the country, you certainly stand financial risk from ignoring the case even if you never wish to visit personally, and, IIRC, several countries have agreeements allowing enforcement of some or all civil judgements of one country in the other's courts, so you may be at risk if you have assets or business dealings in certain third countries, as well.

and DoubleClick (2, Interesting)

ILongForDarkness (1134931) | more than 6 years ago | (#20480133)

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 spammer. You can easily spam 1000 per second from a server, so your looking at a very small fraction of a cent per message. But the user has to take their time to remove you message, their bandwidth is tied up etc. I think the estimate was in the tens or hundreds of millions of dollars if you factor in the cost to the company paying the employee while they determine if it is spam or not. Even more if the spam has viruses, and causes system exploits. Spam filters work, sort of, sometimes they block stuff you want, and if not, you have to check your junk box every once in a while just in case, so it isn't saving you all the time associated with spam.

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". Money applied to spam filtering, or as a discount to the end user that had to deal with the unfortunate garbage.

Re:and DoubleClick (2, Insightful)

Phil246 (803464) | more than 6 years ago | (#20480185)

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..."

Re:and DoubleClick (1)

ILongForDarkness (1134931) | more than 6 years ago | (#20480267)

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. The spammers are flooding the ISP's network, but aren't necessarily costumers of the ISP. The logical originator isn't a customer, so the ISP's customers are having traffic associated with their accounts that isn't their desire to initiate. The ISP can either block the stuff from coming so you don't get the bogus download fee, or they can bill someone else. I don't think it is ethical for the end recipient of spam to have to pay the salarys + the bandwidth for something they didn't even want.

Re:and DoubleClick (1)

djones101 (1021277) | more than 6 years ago | (#20480415)

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.

Re:and DoubleClick (1)

Creepy Crawler (680178) | more than 6 years ago | (#20480631)

---yet I'm inundated with them at every turn.

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.

Re:and DoubleClick (1)

ILongForDarkness (1134931) | more than 6 years ago | (#20480653)

Some of Google's adds are paid for hits from your search. They are a valid response to your query, imho. It is a potential answer to the query, just the order of the listing is gamed. I agree ads in pages often aren't requested by the user. However, sites that you log into, often say in there EULA that they make there revenue by offering ads, so the user in that case actually has agreed to take the ads with the content they want. Either way though the user initiated the content stream, it was a pull, not a push.

I think my suggestion would work, because if the company doesn't want to pay for the bandwidth/penality, they could always put in place a EULA were the user explicitly accepts the ads as the cost of the service. Going to a search engine, or something, and getting 10 popups and tickers all over the screen, is a not so subtle way to let the user know that is how they get the free service.

Re:and DoubleClick (1)

idontgno (624372) | more than 6 years ago | (#20481517)

Oh, so you're actually well read up on the current network neutrality [wikipedia.org] controversy. I find it particularly interesting you cite one of the major proponents of NN (Google), as well as one of the major "villains" in the eyes of the opponents of NN (because Google is such a significant source of traffic on the network).

Good work.

Re:and DoubleClick (1)

element-o.p. (939033) | more than 6 years ago | (#20481927)

Quote: 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.

That's the logic that the big ISPs and telcos are using for their arguments in the net neutrality debate: "If you send a lot of traffic through my network, I'm going to bill you for it." And all (or a lot of) the end users (including, to some extent, me) got up in arms about that, effectively saying "I'm already footing the bill for your bandwidth with my monthly service charge. You can't charge Google or Vonage or anyone else on the Internet for using the same bandwidth that I'm already paying you for!" (sed "s/Google or Vonage/DoubleClick and e360/").

Re:and DoubleClick (1)

ILongForDarkness (1134931) | more than 6 years ago | (#20482011)

Thats the problem though. You are paying for the bandwidth, for the spam, ads etc. that you don't even want. I propose that the person initiating the traffic pay, so if you are pushing spam and popups, you pay for the full bandwidth, not just the hop from your server to the targets ISP mail server. But also the hop from the targets mail server to the end user.

And Spamhaus should worry about this how, exactly? (0)

Anonymous Coward | more than 6 years ago | (#20480337)

Spamhaus are a UK company.

More and more, noone wants to do business with the US, or travel there as a tourist.

So why should we care if some far away country wants to claim we owe them some money? Let them come to Europe and say that!
 

e360 Insight should sue an ISP... (2, Interesting)

Kazoo the Clown (644526) | more than 6 years ago | (#20480403)

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.

They can't. (1)

www.sorehands.com (142825) | more than 6 years ago | (#20480761)

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 Ventures, LLC v. University of Texas at Austin (5th Cir. 2005) http://www.spamlaws.com/cases/whitebuffalo2.shtml [spamlaws.com]

Re:e360 Insight should sue an ISP... (1)

Phroggy (441) | more than 6 years ago | (#20481717)

My understanding is that they're not suing Spamhaus for blocking their mail, they're suing Spamhaus for falsely labeling them with "known professional spam operations that have been terminated by a minimum of 3 Internet Service Providers for spam offenses." The plantiff claims that this isn't true, that they're not a spam organization, and that they've never been terminated by any ISP for spam offenses. Plaintiff further claims that being falsely labeled as such by the defendant has damaged Plaintiff's reputation and cost them business.

Use of Spamhaus contributes to email unreliability and should not be imposed by ISP services.
Obviously you don't run a mail server, and have no idea how much spam is being blocked for you. If your e-mail wasn't being filtered, you would either stop using it, or desperately try to find a way to filter it.

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.
What would you suggest - that mail administrators employ a team of trained experts to sift through thousands upon thousands of messages every day, manually identifying what is spam and what is not?

I run a very small mail server at home, just for me and family and friends. This isn't for an ISP or anything, this is just for personal use. Do you have any idea how much spam I block?

Just on this one small server, in one week, around 10,000 SMTP connections are rejected based on DNS-based IP blacklists (these include blacklists for entire countries, such as Korea and China). Another 2,000 or so are rejected based on various other criteria I've come up with, such as what the reverse DNS hostname looks like (I've put together a list of patterns to match against), or who the envelope sender is, or even the recipient list. Once a message makes it through all of that, it is accepted. Of the accepted messages, around 50-100 are blocked because ClamAV identifies them as known phishing attempts or viruses. Finally, the messages are analyzed with SpamAssassin, which assigns a score to each message (using several rules I've written myself, as well as rules I've selected from the SpamAssassin Rules Emporium [rulesemporium.org] ). Messages with a score of 5 or higher are quarantined for review. That's about 3,000 messages, nearly all of which are spam.

If we assume that two thirds of the refused connections are just attempts to re-send the same message (despite the fact that the connections are rejected with a 5.x.x code which indicates a permanent failure), we get a conservative total of 7,000 spams per week, or 1,000 per day. Just on my little server I use for my friends and family.

Now imagine a large ISP with 100,000+ customers. If they can't effectively block hundreds of spams per customer per day, their customers will go elsewhere, or just stop using e-mail altogether.

Re:e360 Insight should sue an ISP... (1)

Kazoo the Clown (644526) | more than 6 years ago | (#20483249)

Obviously you don't run a mail server, and have no idea how much spam is being blocked for you. If your e-mail wasn't being filtered, you would either stop using it, or desperately try to find a way to filter it.

I have an unfiltered account that I manage Spambayes to filter it. Using that, I have full access to its results, can tune it as I like and can recover any messages that have been misfiltered. So far it has not yet misidentified legit email as spam, and I only get a couple of spam messages a day that slip through. I've had the email account for years, and it's apparently made it to plenty of spam mailing lists. Before I went to Spambayes I had a complex procmail filter that I finally got tired of adjusting-- but the point is I have *control* over it and I can check and recover when legit emails are miscategorized.

What would you suggest - that mail administrators employ a team of trained experts to sift through thousands upon thousands of messages every day, manually identifying what is spam and what is not?

No, simply that they leave it in the control of their users-- provide a choice of filtering options but do not impose any. If a users chooses to use Spamhaus, then great, but I've seen many services that a) don't give users a choice, and 2) don't provide access to the filtered messages. I've also seen accounts that attempt to use draconian measures of eliminating all mails that come from certain types of sending systems-- deemed to be "rogue" because they may not be configured to follow the latest "rules" of sending mail (and thereby eliminate a lot of legit emails from many systems in the process). The accounts quickly become unusable when about 1/4 to 1/2 of their incoming emails are bounced or filtered and no indication of this action is given to the mailbox owner that incoming messages have been rejected-- typically it is discovered when senders complain about no response or bounce messages.

The point is filtering must be a feature that can be completely monitored by the users-- an optional feature and a record of every filtered message must be available. I don't find filtering "for the users own good," or whining about the huge volume of SPAM in the world, to be particularly compelling excuses for introducing additional unreliability in email transmission.

I believe, and sincerely hope that it is merely a matter of time until a critically important email gets misrecognized as SPAM or as originating from a "rogue" service by an ISP who did NOT provide the feature optionally to their users, and is eventually discovered by a user who then files a lawsuit over it. Common carriers should not have the ability to invisibly and/or arbitrarily filter communications to its customers, especially when they do a lousy job of it (as IMHO, automated blacklists & greylists generally do).

Huge gift (1)

Spazmania (174582) | more than 6 years ago | (#20480505)

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.

This is a HUGE gift from the appeals court.

Re:Huge gift (1)

seebs (15766) | more than 6 years ago | (#20480863)

Yes, because spamhaus has been accumulating evidence ever since, so at this point, they can list e360 forever. :)

Linhardt is in trouble now. (4, Interesting)

www.sorehands.com (142825) | more than 6 years ago | (#20480665)

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.

Spamhaus's lawyers are aware of this.

Would this be evil/wrong? (2, Funny)

Anonymous Coward | more than 6 years ago | (#20480753)

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 the average person, hence reducing response rates to future spam.
5) I make a tidy profit cleaning the gene pool.

So, where's the downside?

Re:Would this be evil/wrong? (2, Informative)

SpamIsLame (1021333) | more than 6 years ago | (#20481677)

2) When the orders come in, send out authentic-looking prescription medication, but instead of medicine the pills are made of fast-acting poison.

This is unfortunately already happening:

Vancouver Sun: Online drugs can prove deadly: coroner [canada.com]

Not a joke: real people are dying from these scumbags.

There are also several mentions of death via overdose or fake prescriptions containing harmful particles in the recent court documents released on the Chris "Rizler" Smith conviction as well:

http://spamsuite.com/node/195 [spamsuite.com]

They definitely are killing people, it's just not publicized very often, if at all.

The downside you speak of is lack of any interest on the part of the media in exposing these (mostly Russian) criminals for the scum that they are. They'll raise the issue of allofmp3.com violating copyright as a barrier to Russia entering the WTO, but not this. I don't understand why.

SiL

The downside... (0, Insightful)

Anonymous Coward | more than 6 years ago | (#20481941)

So, where's the downside?
 
...God would punish you for killing people. So would the criminal justice system.

God still might even punish you just for thinking up such wicked crap.
Jesus said that someone who commits murder in their heart or wishes death to someone is no different than someone who actually commits the real thing.

Gotta love this judge (2, Interesting)

Mathinker (909784) | more than 6 years ago | (#20480805)

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".

Satisfied customer (1)

OrangeTide (124937) | more than 6 years ago | (#20481539)

I am satisfied with blocking e360. I don't care if it hurts their business, because they shouldn't be sending me or any of my users emails. Spamhaus provided a means to ensure that we don't get such emails.

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.

Re:Satisfied customer (1)

nuzak (959558) | more than 6 years ago | (#20481753)

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.

David Linhardt, DBA e360, is a complete out-and-out spammer -- Spamhaus and others have copious documented proof of this fact. This is not a marketer suing over an erroneous listing, this is a clear-cut "sue to spam" tactic. If we're looking for other terms to describe Linhardt, feel free to pick one or more of these:

  • Liar
  • Con man
  • Vexatious Litigant
  • Coward
  • Perjurer


Re:Satisfied customer (1)

OrangeTide (124937) | more than 6 years ago | (#20482897)

you and I know what e360 is, but calling someone a huckster forces you to prove that to be a fact in court. If you use more gentle or more vague terms, then the bar is set much lower and makes the court cases much easier to win.

Re:Satisfied customer (2, Informative)

asuffield (111848) | more than 6 years ago | (#20482637)

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 thing to them). No trial has been held on the facts of the case. It's not real trouble because the court really can't do anything: regardless of what judgement is made against them, they don't have to pay or comply in any way, and that'll be the end of it. You can't extradite a company, the court can't enforce judgement against assets that are located on foreign soil, and in the UK (where Spamhaus really are) is it not illegal to ignore the proclamations of a foreign court.

Re:Satisfied customer (1)

OrangeTide (124937) | more than 6 years ago | (#20482925)

They can be blocked from continuing to do business in that jurisdiction. Not that it is enforceable in this age of the Internet.

One win for the good guys. (1, Interesting)

Anonymous Coward | more than 6 years ago | (#20482423)

This is no worst than having Megan Law websites showing sexual offenders in the community. I remember when the Megan law website first came and an sexual offender sue that this infringed upon his rights but the courts showed that greater protection of general public is more important and one person rights. I hate to say that most sexual offenders re-offended after they are released. I say this is correct judgment. Spammers are no worst, in my opinion, than these sexual offenders and these people should be "blacklisted" somewhere. I don't need to subscribe to spamhaus and I don't need to look at the Megan Law websites but this information is open to those who need it which I think is important. Spamhaus and other blacklisting services should be able to blacklist true spammers and also allow people that have incorrectly placed on there list to be removed within reason.
However now with botnets this point is getting mute since spammers are taking over legitimate systems to send out there junk in their stead so legitimate system are being caught in this trap of being blacklisted instead of the real spammers. The best way to stop this is get the spammers and put them in a non-networked prison and give back all of the money they stole so they are truly punished for what they have done to all of us.
While I'm dreaming would like to have visit the Playboy Mansion....
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