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More Gordon v. Virtumundo news

Eric Goldman reviews the appeals court decision in Gordon vs. Virtumundo.

Delivery Blog Carnival – Selling, trading and renting email addresses

A couple weeks ago, I linked to a comment from a marketer mentioning that email addresses should be able to be traded around like snail mail addresses. I suggested this might be a good topic to hear from a lot of different people on.
Mickey posted List Rental is…. In that post he looked at how email is different from direct mail and how the attitudes are different as well.
The folks at Bronto got into the spirit of the blog carnival and Kristin, Kelly and Chris all contributed to a single post offering their perspectives on trading lists, intrusive marketing and delivery.
Al Iverson has two posts on buying lists. One is an older post talking about the delivery hassles and problems related to purchased lists from the perspective of a ESP delivery expert. Over on his SpamResource blog, he posts about the same issue from the perspective of a recipient who is tired of receiving spam.
I also posted on the issue, looking at how email is not snail mail and senders cannot be successful in email by applying the direct mail rules.
Thanks to everyone who submitted posts.

9th circuit ruling in Gordon v. Virtumundo

The 9th circuit court of appeals issued their ruling in Gordon v. Virtumundo today. The ruling was heavily in favor of Virtumundo. I have not had time to read the ruling, but both Venkat and Mickey have posts on the case and the ruling.
This is another solid blow against anti-spammers suing spammers under state laws and CAN SPAM. The problem is that many of the cases are brought by people, and lawyers, who fail to understand that just because they don’t like something doesn’t make it illegal. Spammers do a lot of bad things, but the ones you can track enough to sue are generally not breaking the law. Sadly, cases like Gordon and Mummagraphics makes it harder for ISPs to sue spammers that are actively harming the ISP and the customers.

Email is not direct mail

A few weeks ago someone commented on a previous post of mine about list purchasing saying that at some point senders should be able to trade and sell email lists like they trade and sell direct mail lists. As much as marketers may not like this, email is never going to be the free for all that direct mail is and they’re never going to have the ability to trade email addresses the way they do physical addresses.
I don’t think this “marketing opportunity” is going to be realized for two major reasons. One, marketing is intrusive and people are more resistant to intrusions in their email boxes than intrusions in other places. Two, marketers own many of the channels used for marketing, but they don’t own email.
Billboards, commercials, flyers dropped in the driveway, garbage in the mailbox, door-to-door salespeople, telemarketers interrupting dinner, pop-up ads that cover up the content on the website. All of these push marketing into the daily lives of people. Marketers set out to intrude and interrupt their targets. The interruptions often generate frustration and anger. Marketers also make it difficult, if not impossible, to opt-out of the marketing. “Put me on your do not call list” doesn’t always work. Requesting to be removed from a catalog list rarely works. The only way to avoid pop-ups is to avoid those websites that serve them. Door to door sales people just keep coming and each one is sure the “no soliciting” sign is not directed at them.
Marketers have created an over-saturation of marketing. People are frustrated and exasperated by the interruptions. Many feel powerless in the face of so many intrusions.
Email marketing is, in many ways, the ultimate in intrusive and interruptive marketing. The marketer can send email whenever they want and it waits to interrupt the recipient. Combine this with how people use email and it is a recipe for recipients being intolerant of unasked for email marketing.
Email is, at its heart, a way for people to communicate with one another. It is a more immediate and personal way of communicating than writing letters to each other. Email is closer to a replacement for phones than it is for a replacement of snail mail. People started seeing their inbox as a way to have close to real-time conversations. Marketing email, particularly unasked for marketing email, is often seen as an interruption of the conversation. Unasked for marketing email is much closer to a telemarketers calling during dinner than it is to receiving an unsolicited credit card offer in a mailbox.
People don’t really like unasked for marketing emails, many of them refer to such emails as spam.
People feel a lot of ownership over their inbox. This ownership results in loud calls to their ISPs to stop the spam. The ISPs have responded by providing more and more controls over who can intrude in any one users inbox. The end result is that end users have more control in this medium than they have in other types of intrusive and interruptive marketing. As long as the power is in the recipients hands, marketers will find it difficult to trade addresses around like they do for snail mail.
This individual control directs the actions of the ISPs. If enough customers tell an ISP that a particular sender is sending spam, then the ISP will block that mail. The ISPs are gatekeepers protecting their customers from spam. The power of one person blocking a single mail is multiplied when thousands of people block the same mail. Eventually, the ISP will stop the mail from getting to the users.
ISP customers have said, loud and clear, we do not like spam. ISPs responded by blocking spam, instituting lawsuits against spammers and promoting laws that make some types of spam illegal. Until the business model of ISPs change, that is they’re not making money from their customers and are instead making money from email marketers, the ISPs will continue to listen and set standards that make recipients happy.
In this one area marketing targets have more influence and power than marketers. Marketers can’t treat email like another direct channel because marketers don’t own the channel and don’t make the rules there. This is why trading address lists around is not going to become an acceptable or accepted practice.

Contact addresses and spam

One of the challenges anyone doing business on the internet faces is how to provide contact information so that potential customers can reach you in a form that spammers can’t easily abuse. Contact forms are the classic method, but they can (and are) abused by spammers. We decided to try something different. About 2 months ago, we started using rotating contact addresses. Every day a new address is deployed on the contact form on our website. Each address is valid for a fixed period of time, and is then retired.
This seems to be working well for us. Spammers are harvesting the email addresses, but because they are only valid for a fixed period of time, the amount of spam in my mailbox is not overwhelming. I am spending less time searching for sales mails through spam. An interesting side effect is I can actually see who is harvesting addresses and spamming.
It’s not perfect, I’m still getting spam to that address. But it’s spam at a level where I’m not losing real mail.

New Delivery tools

A couple nifty new delivery tools were published over the weekend.
Mickey published Bounce P.I. where senders can paste in an error message or bounce and it will tell you what filter generated it. If the rejection is unrecognized, it will flag the message internally and it will be researched to see if the filter can be identified.
Steve has a new tool at the DKIMCore site. The key generating tool and the record checking tool have been up for a while. This weekend, though, he published a tool to check the validity the DKIM record published in DNS. Tool output shows if the record is valid, the version and the public key.

Spam judgment not covered by insurance

Earlier this month a judge ruled that two insurance policies held by Scott Richter’s Media Breakaway were not liable to pay $6M in damages awarded in a previous case.
Myspace initially sued Media Breakaway in 2007 for allegedly using phished Myspace accounts to send emails advertising Media Breakaway websites. In summer 2008 and arbiter ruled in favor of Myspace and against Media Breakaway. After the ruling, Media Breakaway attempted to have insurance cover the fine. The insurance company denied the claims so Media Breakaway took them to court. Media Breakaway lost.
Scott has been around in the email marketing arena for a very long time. He’s had multiple run ins with the law, including a 2003 felony theft charge for stealing a number of things, including a Bobcat loader and a 2004 suit brought against him by the NY Attorney General’s office and Microsoft for spamming and deceptive advertising. That court case bankrupted his previous company, OptInRealBig. Scott has also appeared on the Daily Show, in a side-splittingly funny story about spam and email marketing…. er… high volume email deploying.

Blog carnival deadline

Just a reminder, tomorrow is the deadline for the delivery blog carnival. I look forward to seeing your posts!

Permission Based Emails? Are you sure?

Yesterday I wrote about the ReturnPath study showing 21% of permission based email does not make it to the inbox. There are a number of reasons I can think of for this result, but I think one of the major ones is that not all the mail they are monitoring is permission based. I have no doubt that all of the RP customers say that the mail they’re sending is permission based, I also have no doubt that not all of the mail is.
Everyone who sends mail sends permission based email. Really! Just ask them!
In 10 years of professionally working with senders I have yet to find a marketer that says anything other than all their email is permission based. Every email marketer, from those who buy email addresses to those who do fully confirmed verified opt-in with a cherry on top will claim all their email is permission based. And some of the mailers I’ve worked with in the past have been listed on ROKSO. None of these mailers will ever admit that they are not sending permission based email.
Going back to ReturnPath’s data we don’t really know what permission based email means in this context and so we don’t know if the mail is legitimately or illegitimately blocked. My guess is that some significant percentage of the 20% of email to the probe accounts that doesn’t make it to the inbox is missing because the sender does not have clear recipient permission.
When even spammers describe their email as permission based email marketing, what value does the term have?

Delivery Metrics

Last week ReturnPath published a study that shows 20% of permission based email fails to be delivered to the inbox. For this study, ReturnPath looked at the mail sent by their mailbox monitor customers and counted the number of deliveries to the inbox, the number of deliveries to the bulk folder and the number of emails that were not delivered.
At US ISPs 21% of the permission based emails sent to the ReturnPath probe network did not make it to the inbox. 3% of the emails sent went to the bulk folder and 17% did not make it to the mailbox at all. MSN/Hotmail and Gmail were the worst ISPs to get mail to. They each failed to deliver more than 20% of the mail that was sent to them. At Canadian ISPs, even less of the mail made it to the inbox, primarily because primus.ca is such a large portion of the Canadian market and they use Postini as a filter. Postini is a quite aggressive filter and takes no feedback from senders.
ReturnPath’s take home message on the survey is that one set of metrics is not enough to effectively evaluate a marketing program. Senders need to know more about their mailings than they can discover from just the bounce rate or the revenue rate or response rate or open rate.
There are a lot of reasons an email doesn’t get to the recipient’s inbox or bulk folder. Mail can be hard blocked at the MTA, and rejected by the ISP outright. Mail can be soft blocked at the MTA and the ISP can slow down sending. Sometimes this is enough to cause the sending MTA to stop attempting to deliver the mail, thus causing mail to not show up. Both of these types of blocks are usually visible when looking at the bounce rate.
Some ISPs accept mail but then fail to deliver it to the recipient. Everything on the sender end says the ISP accepted it for delivery but the ISP just drops it on the floor. This is the type of block that a mailbox monitoring program is best able to identify.
Despite all the discussions of numbers, many marketers are still not measuring the variables in their email campaigns. Ken Magill wrote today about a study released by eROI that indicates more than a third of marketers are not doing any testing on their mailings.
Now, both of these studies are done in an attempt to sell products, however, the numbers discussed should be making smart senders think about what they are measuring in regards to their email campaign, how they are measuring those factors and what the measurements mean.