Robust protection under the CDA

Venkat also commented on the Holomaxx v. MS/Y! ruling.

As with blocking or filtering decisions targeted at malware or spyware, complaining that the ISP was improperly filtering bulk email (spam) is likely to fall on unsympathetic ears. It would take a lot for a court to allow a bulk emailer to conduct discovery on the filtering processes and metrics employed by an ISP. (Hence the rulings on a 12b motion, rather than on summary judgment.) Here the court reiterates the “good faith” standard for 230(c)(2) is measured subjectively, not objectively. That puts a heavy burden on plaintiffs to show subjective bad faith.

Multiple courts have now confirmed that activity taken to block internet traffic is solidly within the protections of the Communications Decency Act. While most courts agree that there is a possibility some ISP, somewhere, will block in bad faith, the burden of proof for that is on the plaintiff. And it seems that the burden of proof is going to be quite high.

Related Posts

Holomaxx status

Just for completeness sake, Holomaxx did also file an  amended complaint against Microsoft. Same sloppy legal work, they left in all the stuff about Return Path even though Return Path has been dropped from the suit. They point to a MAAWG document as a objective industry standard when the MAAWG document was merely a record of a round table discussion, not actually a standards document. I didn’t read it as closely as I did the Yahoo complaint, as it’s just cut and paste with some (badly done) word replacement.
So what’s the status of both cases?
The Yahoo case is going to arbitration sometime in July. Yahoo also has until May 20 to respond to the 1st amended complaint.
The Microsoft case is not going to arbitration, but they also have a response deadline of May 20.
I’m not a legal expert, but I don’t think that what Holomaxx has written fixes the deficits that the judge pointed out in his dismissal. We’ll see what the Y! and MSFT responses say a month from today.

Read More

Amendment was futile

Judge Fogel published his ruling in the two Holomaxx cases today.

Read More

Still futile

As I mentioned last Thursday, both Yahoo and Microsoft filed oppositions to Holomaxx’s opposition to dismissal. Let me ‘splain… no, there is too much, let me sum up.
Holomaxx sued both Microsoft and Yahoo to force MS and Yahoo to stop blocking mail from Holomaxx.
The judge dismissed the initial complaint with leave to amend.
Holomaxx filed a first amended complaint.
Microsoft and Yahoo both argued that the first amendment complaint should be dismissed because it wasn’t fixed.
Holomaxx filed a motion in opposition to the motion to dismiss. Their arguments were reasonably simple.

Read More