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

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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

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Amendment is futile.

Late last month, Yahoo filed a motion to dismiss in the Holomaxx v. Yahoo case. There’s nothing that unexpected in the filing. The lawyers set the tone of the entire document with their very first paragraph.

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Email marketing ulcers for the holiday

I’ve mentioned here before that I can usually tell when the big ISPs are making changes to their spam filtering as that ISP dominates my discussions with current and potential clients and many discussions on delivery mailing lists.
The last two weeks the culprit has been Yahoo. They seem to be making a lot of changes to their filtering schemes right at the busiest email marketing time of the year. Senders are increasing their volume trying to extract that last little bit of cash out of holiday shoppers, but they’re seeing unpredictable delivery results. What worked to get mail into the inbox a month ago isn’t working, or isn’t working as well, now.
Some of this could be holiday volume related. Many marketers have drastically increased their mail volume over the last few weeks. But I don’t think the whole issue is simply that there is more email marketing flowing into our mailboxes.
As I’ve been talking with folks, I have started to see a pattern and have some ideas of what may be happening. It seems a lot of the issue revolves around bulk foldering. Getting mail accepted by the MXs seems to be no different than it has been. The change seems to be based on the reputation of the URLs and domains in the email.
Have a domain with a poor reputation? Bulk. Have a URL seen in mail people aren’t interested in? Bulk. Have a URL pointing to a website with problematic content? Bulk.
In the past IPs that were whitelisted or had very good reputations could improve delivery of email with neutral or even borderline poor reputations. It seems that is no longer an effect senders can rely on. It may even be that Yahoo, and other ISPs, are going to start splitting IP reputation from content reputation. IP reputation is critical for getting mail in the door, and without a good IP reputation you’ll see slow delivery. But once the mail has been accepted, there’s a whole other level of filtering, most of it on the content and generally unaffected by the IP reputation.
I don’t think the changes are going to go away any time soon. I think they may be refined, but I do think that reputation on email content (particularly domains and URLs and target IP addresses) is going to play a bigger and bigger role in email delivery.
What, specifically, is going to happen at Yahoo? Only they can tell you and I’m not sure I have enough of a feel for the pattern to speculate about the future. I do think that it’s going to take a few weeks for things to settle down and be consistent enough that we can start to poke the black box and map how it works.

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