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e360 v. Comcast: part 4

Today I have a copy of the e360 briefing on Comcast’s motion for judgment on the pleadings.
On a superficial level, the writing of e360’s lawyers not as clear or concise as that of the Comcast lawyers. When reading Comcast’s writings it is clear to me that the lawyers have a story to tell and it has a beginning, a middle and an end. They take the reader through the setup, then through the evidence and case law, then proceed to the remedies requested. There is a clear narrative and progression and it all makes sense and the reader is never left standing. This briefing meanders hither and yon, prompting one person to ask was this written on the back of a placemat in crayon.
I still think e360 is misunderstanding or misstating some crucial facts in this case.
e360 argues that because they comply with CAN SPAM, then their mail is therefore not spam. This is not true (see Al’s post, and my post and John’s post). Complying with CAN SPAM does not mean you are not sending spam. I will go even farther to say that sending super-duper-double-confirmed-with-a-cherry-on-top-opt-in email does not mean you will always get through an ISPs filters. The ISPs have moved away from being in the position of having to decide between a mailer who insists a recipient opted in and a recipient who marks mail as spam. Now, the ISPs look at complaints and if you annoy your recipients, then the ISP is going to filter that mail. It is all about relevancy. It is all about not sending mail that is going to make those users hit the “this is spam” button. And endusers have never cared about permission, spam is email they do not want and if you send it, they will complain about it.
They also seem to have this impression that Comcast is letting all e360’s competitors send email to Comcast. Again, it is all about relevancy. If e36o’s competitors are sending mail that users do not complain about then yes, that mail is going to get through. The problem here is not that Comcast is picking and choosing which ESP gets to mail the users, it is that the recipients are choosing which emails they do not object to. Send emails recipients find useful and relevant, and it does not matter that you scraped their address off a website, they will not report it as spam.
Comcast points out that under the Communications Decency Act (CDA) they are not liable for blocking content. The CDA provides for “Good Samaritan” blocking and screening of content under 2 separate circumstances: 230(c)(1) and 230(c)(2). 230(c)(1) says

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Yahoo delays, part 4: Yahoo blogs

Yahoo posted some suggestions about contacting their postmaster group over on the ymail blog.  They also explained what they were doing to solve the problems with response delays.
Some of the problem is being caused by excessive follow-up emails, either because senders did not provide all the necessary information initially or because they are asking why they have not heard anything. Each of these requires more work on the part of Yahoo and throws the queues into further disarray and puts everyone even more behind.
Yahoo asks that people be patient, they are working through things. On their end, they have added more staff to the postmaster team. They also suggest senders can help by providing ALL the information they ask for at http://postmaster.yahoo.com/ before submitting the request. Incomplete requests contribute even more to the backlog as Yahoo employees have to chase down senders to get their full information.

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Legal filings this week

It has been one of those weeks here and there have been a couple legal things that have come up that I have not had the time to blog about.
One is a post over on Eric Goldman’s blog by Ethan Ackerman discussing the Jeremy Jaynes case. It is quite an info heavy post, but well worth a read.
In addition to not having the time to fully read Ethan’s post and understand the legal subtleties he is discussion, I have not quite had the time to blog about two e360 filings that showed up this week.
The first is a filing by Spamhaus’ lawyers asking for the judge to compel e360 to participate in the discovery process. If you remember e360 won a default judgment against Spamhaus for over $11M. Spamhaus filed an appeal and the Seventh Circuit Court upheld the judgment but vacated damages. Spamhaus and e360 were ordered to conduct discovery on the damages.
I would assume that e360 would be eager to demonstrate the amount of damages Spamhaus caused them, but it appears this is not the case. According to the filing e360 has been missing deadlines and even skipped a planned deposition. The exhibits show numerous email conversations between the lawyers, with e360’s lawyers making repeated promises to deliver, and then failing to follow through.
There are a couple statements in the filing that stood out. First, this paragraph which contains a statement that should have e360’s lawyers shaking in their shoes.

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