Gevalia spamming

A number of people have contacted me over the last week pointing out that Paul Wagner was handed a negative jury verdict in his lawsuit against Gevalia and Connexus. (background Wash Post Article Washington Post verdict article, Ken Magill Article).
I spent some time this afternoon downloading different documents from Pacer trying to understand what was going on in the case and what the implications were. This lawsuit was originally filed in 2008 and has had nearly 600 documents filed with the court. Suffice it to say, I didn’t start at the beginning and work forward, I started at the end and worked backwards.
Beyond Systems, Inc. filed suit against Kraft and Connexus for spamming addresses under the California and Maryland anti-spam laws.
This recent “mini-trial” assessed 3 questions:

  1. Whether Beyond Systems is a bona fide “interactive computer service provider” entitled to bring suit under the Maryland Commercial Electronic Mail Act
  2. Whether Beyond Systems is a bona fide resident of the state of Maryland within the meaning of the MD anti-spam statute
  3. The nature of the relationship between Beyond Systems, James Joseph Wagner and Hypertouch.

This was actually broken down into 2 phases.
Phase 1 asked the jury to determine if BSI was an “interactive computer service provider” as defined by Maryland and California law (jury instructions for phase 1). The jury determined that BSI was a computer service provider under the MD and CA laws.
Phase 2 asked the jury to determine if BSI was a bona fide service provider under the MD and CA laws. The jury instructions for phase 2 define bona fide for the jury.

A bona fide ICSP [Interactive Computer Service Provider under Maryland law] and EMSP [Electronic Mail Service Provider under California law] is an entity that primarily and substantially provides the services set forth in the Maryland and California statutes.
An entity is not a bona fide ICSP or EMSP if it primarily or substantially engages in bringing anti-spam litigation.

The jury found that BSI was not a bona fide service provider under the Maryland and California laws.
Not having the stomach to read through 560+ legal filings and the attached exhibits, I can’t comment on the jury’s verdict. They have much more data about this than I do. I expect that their ruling is spot on, though.
It’s frustrating, though, to watch people bring suit against large companies that are definitely spamming and do it so incompetently that the defendants can continue to spam. It’s no secret that Gevalia has been hiring affiliate marketers that send spam on Gevalia’s behalf for a long time.
It’s also frustrating to listen to the lawyers for the plaintiff argue that no one was harmed because the email address that received the spam didn’t actually belong to anyone.

21. None of the emails over which BSI sues were sent to any Maryland resident. Instead the emails were sent to misaddressed email address [sic] and/or to email addresses that nobody used to send and receive email. Document 539, p 13

I get why they’re arguing that legally, but sending an email to a non-existent email address isn’t exactly a case of no-harm, no-foul. Even rejecting mail sent to non-existent addresses uses resources on a mailserver. We’ve seen major ISPs with massive infrastructure get overwhelmed with incoming email to the point where they have to defer connections from legitimate senders. Smaller senders getting hit by spammer attacks suffer even more.
Of course, when you’re the lawyer for a bunch of spammers sending dozens of ads a day to a single recipient, what else can you do but blame the victim for actually accepting what you’re sending?

Why, look, Gevalia are spamming me, too.

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What Happens Next…

or Why All Of This Is Meaningless:
Guest post by Huey Callison
The analysis of the AARP spam was nice, but looking at the Mainsleaze Spammer Playbook, I can make a few educated guesses at what happens next: absolutely nothing of consequence.
AARP, if they acknowledge this publicly (I bet not) has plausible deniability and can say “It wasn’t us, it was an unscrupulous lead-gen contractor”. They probably send a strongly-worded letter to SureClick that says “Don’t do that again”.
SureClick, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. They probably send a strongly-worded letter to OfferWeb that says “Don’t do that again”.
OfferWeb, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. And maybe they DO fire ‘Andrew Talbot’, but that’s not any kind of victory, because he probably already has accounts with OTHER lead-gen outfits, which might even include those who also have AARP as
a client, or a client-of-a-client.
So the best-case result of this analysis being made public is that two strongly-worded letters get sent, the URLs in the spam and the trail of redirects change slightly, but the spam continues at the same volume and with the same results, and AARP continues to benefit from the millions of spams sent on their behalf.
I’m not a lawyer, but I was under the impression that CAN-SPAM imposed liability on the organization that was ultimately responsible for the spam being sent, but until the FTC pursues action against someone like this, or Gevalia, corporations and organizations will continue to get away with supporting, and benefiting from, millions and millions of spams.
As JD pointed out in a comment to a previous post: sorry, AARP, but none of us are going to be able to retire any time soon.

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AARP, SureClick, Offerweb and Spam

On Tuesday Laura wrote about receiving spam sent on behalf of the AARP. The point she was discussing was mostly just how incompetent the spammer was, and how badly they’d mangled the spam such that it was hardly legible.
One of AARPs interactive advertising managers posted in response denying that it was anything to do with the AARP.

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CAN SPAM preemption of CA law

The California court of appeals returned a ruling yesterday in the Hypertouch v. ValueClick case. This is a case I haven’t talked about at all previously, but I think this ruling deserves a mention.
The short version is that Hypertouch sued Valueclick in 2008 under both CAN SPAM and the California anti-spam law. Eventually the judge in the case ruled that there was no clear evidence of fraud, therefore CAN SPAM preempted the California law.
Hypertouch appealed the case.
Yesterday the appeals court published their opinion and kicked the case back down to the lower court.

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