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.

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Holomaxx doubles down

Holomaxx has, as expected, filed a motion in opposition to the motion to dismiss filed by both Yahoo (opposition to Yahoo motion and Hotmail (opposition to Microsoft motion). To my mind they still don’t have much of an argument, but seem to believe that they can continue with this.
They are continuing to claim that Microsoft is scanning email before the email gets to Microsoft (or Yahoo) owned hardware.

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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.

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Amendment was futile

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

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