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.

Related Posts

Legal analysis of Hypertouch v. Valueclick

Venkat has an analysis of the Hypertouch v. Valueclick case and recent appeals court ruling.

Read More

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.

Read More

Mainstream spam wrap-up

Over the last week Steve and I have posted about the AARP hiring affiliates to send spam on their behalf: starting with the poorly done email message, moving through the process of identifying the responsible entity and then walking through the details of how we tracked the spammer.
Why spend a week writing about the AARP spamming? I initially posted about the AARP spam because it was such a horrible example of email marketing. Not just that it was spam but it was careless spam. Plus, in a lot of my interactions with marketers, clients and delivery experts I hear a lot about how “real” companies don’t spam, don’t support spam and wouldn’t ever let someone spam on their behalf. This isn’t true, not even a little bit.
The post actually came to the attention of the AARP and someone from their national headquarters commented that it was “just spam” and had nothing to do with AARP. I’ll be honest, I was annoyed with their reaction. I did my homework before calling the AARP out and was convinced this mailing was authorized by them.
Over the next 2 days Steve investigated the spam and reported on his findings. He only documented the full investigation on one of the emails I received (yes, there were multiple emails sent to the same address, most of them coming from different domains owned by the spammer). We did this to document that yes, mainstream companies do hire spammers and that trail can sometimes be tracked. We also wanted to show the lengths spammers and their customers will go to in order to get through filters and spam blocks.
A lot of mainstream groups do support spam and hire other people to send it on their behalf. Many of these same companies expect ISPs to hurry up and let mail through because “we’re a legitimate company” when their mail is blocked.
To be fair, some companies may not initially intend to support spam, but when they see the money rolling in they can’t stop. Some may pay lip service to no-spam policies, but deliberately turn a blind eye to spam advertising their company. Some hire spammers, but with enough distance between themselves and the spammer that they can deny they knew about the spam.
Every company using email for acquisition without actively managing the email program is at risk of spammers being hired on their behalf. There are some things that can be done to lower the risk of spammers being used to send spam, but the spammers are clever and if the payouts are high enough they will spam on your behalf.
There are things a company can do to minimize the chances that an affiliate program will attract spammers. Check back tomorrow for some processes that have proven effective for my clients.

Read More