Holomaxx
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.
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Holomaxx v. Yahoo and MS: The hearing
I visited Judge Fogel’s courtroom this morning to listen to the oral motions in the Holomaxx cases. This is a general impression, based on my notes. Nothing here is to be taken as direct quotes from any participant. Any errors are solely my own. With that disclaimer in mind, let’s go.
The judge is treating these two cases as basically a single case. When it came time for arguments, the cases were called together and both Yahoo and Microsoft’s lawyers were at the defendant’s table.
Oral arguments centered on the question of CDA immunity and to a lesser extent if there is an objective industry standard for blocking and dealing with blocks. Nothing at all was mentioned about the wiretapping arguments.
The judge opened the hearing with a quick summary of the case so far and what he wanted to hear from the lawyers.
Judge Fogel pointed out that current case law suggests that the CDA provides a robust immunity to ISPs to block mail. The plaintiff can’t just say that the blocks were done in bad faith, there has to be actual evidence to show bad faith. The law does permit subjective decisions by the ISPs. Also, that it is currently hard to see any proof of bad faith by the defendants.
The judge asked the plaintiff’s attorney for his “absolute best argument” as to the bad faith exhibited by the defendants.
The plaintiff responded that they are a competitor who is being stonewalled by the defendants. That their email is not spam (as it is CAN SPAM compliant) and it is wanted email. The defendants are not following the “objective industry standard” as defined by MAAWG.
The judge responded clarifying that the plaintiff really claimed he didn’t need to present any evidence. “Yes.” Judge Fogel mentioned the Towmbly standard which says that a plaintiff must have enough facts to make their allegations plausible, not just possible.
Yahoo!’s lawyer pointed out that both case law and the statutes require a robust showing to invalidate claims under the CDA. And that the purpose of the CDA is to protect ISPs from second guessing. She started to bring up the absolute numbers of emails, but was interrupted and told the numbers weren’t relevant. My notes don’t say if that was the judge or Holomaxx’s lawyer that interrupted, and the numbers discussion did come up again.
Yahoo continued that the CAN SPAM compliance is not a litmus test for what is spam. The decision for what is and is not spam is left to the subjective judgement of the ISP. She also pointed out that the numbers are important. She defined the amount of spam as a tax on the network and a tax on users.
She also addressed the anti-competitive claim. Even if Holomaxx is right, and neither defendant was conceding the point, and it is doubtful that the anti-competitive point can be proven, competition alone cannot establish bad faith. What evidence is there that either defendant exhibited bad faith? In Yahoo’s case there is zero advertiser overlap and in the Microsoft case Holomaxx showed one shared customer.
She then pointed out that the MAAWG document was a stitched collection of experiences from desks. That the document itself says it is not a set of best practices. She also pointed out that there was nothing in the document about how to make spam blocking decisions. That it was solely a recommendation on how to handle people who complain.
According to Yahoo!’s lawyer the plaintiffs brought this suit because they disagreed with the ISPs’ standards for blocking and they were upset about how they were treated. That the worst Holomaxx can say is the MS and Y! had bad customer service.
At this point there was some discussion between the judge and lawyers about how they were currently in a “grey area” between Rule 9(b) and Rule 12(b)6. I am not totally sure what this was about (one of my lawyer readers can help me out?) but there was also mention of using these rules in the context of the ISPs’ robust immunity under the CDA.
Finally, the judge asked Microsoft’s lawyer if he had anything more to add. He reiterated that the MAAWG document was not a standard, it was a collection of options. He also brought up the volume issue again, asserting that even if it is a true standard that the volume of unwanted mail sent by Holomaxx does not mean ISPs need to follow it.
Judge Fogle asked him if he meant there was no legal obligation for the ISPs to be warm and fuzzy.
The judge and defendant lawyers talked around a few general ideas about the MAAWG document. First that there was no obligation to tell senders enough information so that senders could reverse engineer spam filters. Microsoft also brought up the volume issue again, saying that the volume of unwanted 3rd party mail that the plaintiff was sending was, in itself, proof that the mail was bad.
Holomaxx interrupted claiming that the volume is a red herring. Judge Fogel countered with “but the gross number of unwanted emails is a huge number of emails.” Holomaxx’s lawyer argued that both Yahoo and Microsoft had large, robust networks, and the volume is irrelevant. I thought this was funny, given how often both of them have outages due to volume. However, the Holomaxx lawyer did have a point. Facebook sends billions of emails a day and both Yahoo and Hotmail can cope with that volume of mail and that volume dwarfs what Holomaxx sends.
The judge asked if he should look at the percentage of complaints about the mail rather than the gross number. Holomaxx replied that both were just a drop in the bucket and neither number was relevant.
Holomaxx then claimed again that MAAWG was a standard. The judge pointed out it was a standard for customer service, not a standard for blocking. Holomaxx disagreed and said that the MAAWG document was a standard for both how to block and how to deal with blocks afterwards.
The judge asked Holomaxx if there was any actual evidence of their claims. He talked about a case he heard a few years ago. Some company was suing Google because their search results were not on the front page of Google results. That company didn’t prevail because they never offered any actual evidence that Google was deliberately singling them out. He asked Holomaxx how they were being singled out.
Holomaxx replied there was no industry standard to measure against.
The judge wrapped up the hearing by pointing out that he was being asked to show where the exceptions to the CDA were and that he had to consider the implications of his ruling. He agreed that bad faith was clearly an exception to CDA protection, but what was the burden of proof required to identify actual bad faith. He seemed to think this was the most important point and one that would take some deliberation.
Overall, the hearing took about 15 minutes, which seemed in line with the case immediately before this one.
My impression was that the judge was looking for Holomaxx to argue something, anything with facts rather than assertion. But, I am scientist enough to see that may be my own biases at work. But the judge gave Holomaxx the opportunity to show their absolute best evidence, and Holomaxx provided exactly zero, instead falling back to it’s true because we said it’s true.
The judge will issue a written ruling, I’ll keep an eye out for it and post it when it’s out.
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.
Gathering data from PACER
I had someone ask on Facebook about getting some documents off of Pacer. I thought the information may be of use to other people out there.
PACER (public access to court electronic records) provides access to public documents filed in the Federal court system. Each court has their own website, but there is one login and the search and document display are the same. Documents cost 8 cents a page, capped at $2.40 for a single document.
Access to PACER isn’t always immediate. When I signed up there was a 7 – 10 day delay as usernames and passwords were sent by mail. There does seem to be a way now to get a password faster, for those of you who want data NOW!
Once you’ve got a username and password now you’re in business and can start digging up all these documents.
The first step is determining which court website to check. Generally, I’m looking for details because I saw a news report that does mention what court the case was filed in. So I just plug the court name (Northern District of California) in a search window and go from there. PACER also provides the facility to look up where a case is on their website. This wasn’t an option when I signed up for PACER so I’ve never used it, but it is there.
The court websites are often not very flashy (Web 0.5!) but there will be a link to retrieve documents or view documents through PACER. This is the link that will take you to the login page. Put in your username and password and click go. If you’re not filing, you don’t need to bother with the checkbox for the Notice of Redaction Responsibility to get in, nor do you need to add a client code.
Once you’re logged in you’ll notice a blue bar across the top of the page. This is your (web 0.5!) navigation bar. Click on Query to bring up the case search window. If you have the actual case number, you can put that in the top box and hit search. Otherwise, you can enter in a party name. For my recent research, I just enter “holomaxx” in the box marked Last/Business Name and click Search. Being web 0.5! you have to actually click the button, pressing enter doesn’t work.
That will take you to the Select a Case window. In this case, Holomaxx is a safe search because it brings up exactly the two cases I’m interested in: Holomaxx v. Yahoo and Holomaxx v. Microsoft. Clicking on the case number brings up a window with some basic information (the judge, last filing date) and a number of links.
The link that will show you documents is, unsurprisingly, History/Documents. Click there, and click again on All events to bring up a list of documents filed with the court.
The first column is a clickable link that lets you look at the document. The second column is that date it was filed. The third column is the title of the document. Generally when I’m looking at a new case I grab something that looks like “complaint” or “motion” to orient myself.
When I’m looking at PACER I tend to download everything I look at on a case, just so I only have to pay for it once. I also make extensive use of tabs and new windows, so I don’t have to reload the case page.
Download names vary by the actual court. For instance, the Northern California court gives me all the documents with the same name: show-temp.pl. But other courts give names like 384972395.pdf. In either case, you’re going to want to rename the documents to something useful before you have a disk full of show-temp-*.pl files. In some cases, there are documents and exhibits in a single filing. You will be asked if you want to download everything as a .zip file. I suggest you do this.
For a while I was trying to name things intuitively but then gave up because it gets too confusing. My current organizational technique is to set up a directory with the case name HolomaxxvYahoo_4926 and HolomaxxvMS_4924. The numbers are the last 4 digits of the case number and are there to make it easier to file and sort documents.
If you download a zip file, it opens up a directory containing all the files. The courts name these pretty simply: documentnumber-main.pdf, documentnumber-1.pdf, documentnumber2.pdf. The document numbers correspond to the order the documents were filed with the court. Once the file is unzipped, I copy the files into the directory I’ve set up for that case.
Now that you have the documents somewhat organized, you can shut PACER down and go read at your leisure. If you spend more than $10.00 on documents in a quarter, then you will get a bill from the Federal court system. If you haven’t spent that much, the court doesn’t bother billing you that quarter.
Some state courts have similar systems, but not all of them do and you can’t use a PACER login to access them.
In the course of writing this, I discovered new documents filed in the Holomaxx case filed by the defenands. Tune in tomorrow. Same bat-time. Same bat-blog.
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.
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.
Amendment is futile, part 2
When Yahoo filed for dismissal of the Holomaxx complaint, they ended the motion with “Amendment would be futile in this case.” The judge granted Yahoo’s motion but did grant Holomaxx leave to amend. Holomaxx filed an amended complaint earlier this month.
The judge referenced a couple specific deficiencies of Holomaxx’s claims in his dismissal.
Holomaxx v. MSFT and Yahoo
I mentioned way back in January that Yahoo had filed a motion to dismiss the case against Holomaxx. Microsoft filed a motion to dismiss around that time, although I didn’t mention it here.
And, of course, Holomaxx filed a motion in opposition in both the Microsoft case and the Yahoo case. Nothing terribly interesting here, about what you’d expect to read.
On March 11 the judge ruled on both motions to dismiss and in both cases ruled that the case was dismissed. He did, however, give leave for the complaints to be amended in the future.
As I expected the Judge agreed that MSFT and Yahoo have protection under the CDA. First, the court made it clear that providers are allowed wide leeway in determining what is objectionable to their customers.
Amendment is futile.
Late last month, Yahoo filed a motion to dismiss in the Holomaxx v. Yahoo case. There’s nothing that unexpected in the filing. The lawyers set the tone of the entire document with their very first paragraph.
Read MoreEmail and law in the news
A couple things related to the intersection of email and law happened recently.
The 6th circuit court ruled that the government must have a search warrant before accessing email. The published opinion is interesting reading, not just because of the courts ruling on the law but also because of the defendant. Berkeley Premium Nutraceuticals toyed with spamming to advertise their product as a brief search of public reporting sites shows. The extent and effort they went to in order to stay below the thresholds for losing their merchant accounts is reminiscent of the effort some mailers go through to get mail through ISP filters.
The other bit of interesting reading is the Microsoft motion to dismiss the case brought against them by Holomaxx. It is a relatively short brief (33 pages) and 3 of those pages are simply a listing of the relevant cases demonstrating ISPs are allowed to filter mail as they see fit. 2 more pages are dedicated to listing the relevant Federal and State statutes. I strongly encourage anyone considering suing any large ISP to to read this pleading. These lawyers understand email law inside and out and they are not going to mess around. They also have both statute and case law on their side. They point this out before the end of page 1:
Holomaxx dismisses part of lawsuit
Ken announced yesterday that Holomaxx dropped their suits against Ironport and ReturnPath. Suits against Yahoo and Hotmail are still active.
In the Yahoo case, there is a case management meeting on January 14th.
In the Microsoft case, a response the complaint is due by December 17th.
I’m not quite sure what happened to prompt this change, but I think it makes it even more unlikely that the case will be successful. The courts have repeatedly ruled in favor of ISPs in these kinds of cases.
EDIT: I’d link to Ken’s article, but I appear to have closed that tab and I can’t find it on his website. I’ll add it as soon as I do.
EDIT: Ken’s announcement
Comments on Holomaxx post
I’m putting together a longer analysis of the Holomaxx case that will look at the claims against the various defendants. There’s some deep mis-understanding of how various things works (hint: wiretapping? not so much).
There was one comment from “The Other Barry” about complaints that I think bears highlighting.