Holomaxx v. MSFT and Yahoo

I mentioned way back in January that Yahoo had filed a motion to dismiss the case against Holomaxx. Microsoft filed a motion to dismiss around that time, although I didn’t mention it here.
And, of course, Holomaxx filed a motion in opposition in both the Microsoft case and the Yahoo case. Nothing terribly interesting here, about what you’d expect to read.
On March 11 the judge ruled on both motions to dismiss and in both cases ruled that the case was dismissed.  He did, however, give leave for the complaints to be amended in the future.
As I expected the Judge agreed that MSFT and Yahoo have protection under the CDA. First, the court made it clear that providers are allowed wide leeway in determining what is objectionable to their customers.

No court has articulated specific, objective criteria to be used in assessing whether a provider’s subjective determination of what is “objectionable” is protected by §230(c)(2). In e360 Insight, LLC v. Comcast Corp., 546 F.Supp.2d 605, 608 (N.D. Ill. 2008), the court concluded that virtually total deference to provider’s subjective determination is appropriate.

(emphasis added)
Then the court points out that to overcome the “good faith” provision of the CDA that Holomaxx must show how Microsoft is acting in bad faith. The court found no examples of that in Holomaxx’s pleadings. The court also determined that it was counter to the CDA for ISPs to explain exactly how to get around filters.

Holomaxx alleges no facts in support of its conclusory claim that Microsoft’s filtering program is faulty, nor does it identify an objective industry standard that Microsoft fails to meet. While it suggests that Microsoft is “[p]ossibly seeking to cut costs in its service to its free email service” and alleges based on information and belief that Microsoft profits from requiring senders to join “whitelists,” (Compl. ¶¶ 20-22), it offers no factual support for these allegations. Nor does Holomaxx cite any legal authority for its claim that Microsoft has a duty to discuss in detail its reasons for blocking Holomaxx’s communications or to provide a remedy for such blocking. Indeed, imposing such a duty would be inconsistent with the intent of Congress to “remove disincentives for the development and utilization of blocking and filtering technologies.” 47 U.S.C. § 230 (b)(4).

The court concludes:

The first element of Microsoft’s affirmative defense under the CDA is not in dispute. While it is conceivable that Holomaxx could raise an issue of fact as to the second and third elements, it must provide significantly greater factual detail in order to do so. Accordingly, Holomaxx’s third, fourth, fifth, and sixth claims predicated on Microsoft’s filtering and blocking activities will be dismissed, with leave to amend.

If you want to know what the judge said in the Yahoo ruling, just replace all above instances of Microsoft with Yahoo.
The above counts focused on the filtering claims (3, 4, 5 and 6). Claim 1 was that the ISPs were violating the Federal wiretapping law and Claim 2 was that they were violating the stored communications act. In regards to both those counts the court ruled that there was no evidence presented for them to make a decision either way.
One minor side note that I did find a bit interesting was both Yahoo and Microsoft mentioned their user agreements in their motions to dismiss. Holomaxx objected to this reference independent of their objection to the motion to dismiss. Their argument was that mentioning the user agreements (and even including documentation and affidavits) was inappropriate and shouldn’t be included in the case. The judge ruled in Holomaxx’s favor on this point.
There was one extra claim count in the Microsoft complaint “False Light”. I think this was a count really directed at Return Path (originally a co-defendant of Microsoft). The judge ruled there was no false light and that claim was dismissed without leave to amend.
So, there you go. The cases are dismissed. I don’t know if Holomaxx will take this dismissal and move on or if they’ll amend the complaint and try again. Given how fast they dropped Ironport/Cisco and Return Path from the case, it may be that they’ll gratefully take this dismissal and move on.
Full text of the Yahoo Ruling
Full text of the Microsoft ruling

Related Posts

E-Postage Just Won't Die

E-Postage is back! Wired covers a report from New Scientist. Here’s what they have to say: “Yahoo’s researchers want you to voluntarily slap a one-cent stamp on your outgoing e-mails, with proceeds going to charity, in a bid to cut down on spam. Can doing good really do away with spam, which consumes 33 terawatt hours of electricity every year, not to mention way too much of our time?”
Alex Rubin at Return Path says hold up, wait a minute. He writes: “Our contacts at Yahoo! tell us this idea is purely in the research realm, and is not scheduled for development in Yahoo! Mail. In other words: it isn’t even vaporware and isn’t likely to be a part of the Yahoo! mail system anytime soon.” He goes on to say (I’m paraphrasing) that oops, Yahoo didn’t really intend for this research to become public.
So, apparently, there are no plans for Yahoo to roll out E-Postage today, tomorrow or next week. Nothing to see here, beyond a simple web site and some thoughts from a Yahoo researcher. Some individual’s hopeful vision for the future, not a corporate announcement of an upcoming product.
E-Postage has always been a neat idea, I’ve thought. A neat idea beset by insurmountable problems. First, end users don’t want to pay for the email messages they send, they want all you can eat. With years of webmail providers offering free email access, you’ll have a heck of a time convincing somebody’s grandmother that they have to pony up a nickel to be able to email the grandkids.
Then, answer me this: Who’s going to handle the economics on the back-end? And any time you have a computer storing a resource (like, say, account information for that tiny little bit of money you’ll need to be able to send me an email), that information can be hacked, exploited, stolen. You think spammers are actually going to pony up? Why would they? They’ll just hack into millions of exploitable computers, stealing five cents from everyone along the way, and gleefully shoveling millions of spams into millions of inboxes.
This concept of E-Postage, either paying money to send email, or spending “computational power” to send email, has been kicking around for years. Periodically, some researcher comes up with the idea anew, and suggests that we all immediately adopt their sure fire plan to solve the world’s spam problem, immediately, pennies at a time. These ideas never seem to go anywhere. And that will never change until somebody can actually convince most of the world to adopt their proposed scheme. Will it ever happen? Never say never, but I have no plans to rush out and buy e-Stamps any time soon.
— Al Iverson

Read More

Office cat says

All work and no cat petting makes for a very cranky, and in the way, cat.

Read More

Goodmail shutting down

Yesterday Goodmail sent out mail to all their customers announcing they are ceasing operations and taking all their token generators offline as of 5pm pacific on February 8th.
While this is a bit of a surprise on one level, I’m not that shocked. Ken Magill mentioned in August that Goodmail was on the sales block and rumors have been circulating for weeks about significant changes coming to Goodmail.
Goodmail has struggled to find a market since they first started. At one point they were even giving services away to customers at partner ESPs. Despite the free service, people at some of those ESPs told me they were having difficulty getting customers to adopt Goodmail.
Likewise, on the ISP side, Goodmail didn’t seem to have much penetration into the market. They had AOL, Yahoo and some cable companies, but not much else. And as of early last year, Yahoo removed the Goodmail machines.
I think the real underlying problem was that most companies who are doing things well don’t need certification services. Sure, there are a couple exceptions but in general anyone who is sending good mail is getting to the inbox. Even for companies where delivery was not quite as good as they might want, the marginal improvement at those ISPs that do use Goodmail was not sufficient to justify the cost of Goodmail services.
While I have the utmost respect for the Goodmail management team I think this result was almost inevitable. I never got the impression they valued the end recipient quite as much as the ISPs do. That was just one thing that lead me to believe they just didn’t seem to understand the email ecosystem quite the way that a certification service should.
I echo Dennis’ thoughts and well wishes towards the Goodmail folks. The experiment in sender financed delivery was well worth doing and I think they did it as well as anyone could have.

Read More