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back to article Spamhaus victorious after 5-year fight with mass mailer

Spamhaus has finally prevailed in a long-running US court action against it by e360 Insight, a firm it blacklisted for spamming. e360 Insight sued Spamhaus in the US over the blacklisting way back in 2006. Spamhaus, which is based in the UK, argued (on the advice of lawyers) that it was outside the jurisdiction of US courts. …

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I don't get it

why ANY damages? ok it's only $3 and they get their legal fees paid (like that'll happen)

but the point is that the spammer shouldn't have won in the first place, they have basically said he would have won if it wasn't for the fact he was a twat that couldn't sort himself out.

This will just open the door for other "mass email marketing" businesses to go after spamhaus.

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Anonymous Coward

I suspect...

...that perhaps overruling the judgement entirely and negating any damages would be more legally complex (perhaps then allowing for further appeal?) and would drag the case out further, wasting more court time and benefiting nobody.

I'm not in the field, but that'd be my hunch: That it's essentially easier to change the amount on the proverbial invoice than it is to issue a credit note. A little way of playing the legal system in the name of sanity.

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open the door ??

I don't see how winning $3 at a cost of your own legal fees, plus those of the defence (and costs of the courts?) will be seen as opening any doors.

Except perhaps to McBride? :)

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Trollface

Separate cases

That's how the American legal system works.

If someone takes action to stop you from testing your explosive rockets on the public highway, you sue them for interfering with your business. The fact that you've killed 47 people to date is neither here nor there, that's a separate matter between you and the state, but *this* case is about some busybody interfering with your divinely guaranteed right to the pursuit of profit.

The underlying idea is that if someone brings a case like this against you, you bring a countersuit against them for, I dunno, excessive noise or something. The end effect, as designed, is that the maximum possible number of lawyers get employed for the maximum possible amount of time.

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Holmes

Ups and downs

You have to remember that the American legal system is the creation of professional politicians who are owned by the LEAST ethical businessmen. Of course the resulting laws are biased in favor of criminals and even compel large companies to evolve towards more and more evil. The primary goal of their owners (as implemented by the bought-and-paid-for politicians) are (1) Support the cancer model of business growth, (2) Remove legal jeopardy for past escapades on the edge of legality, and (3) Create new complexities to support new scams. I'd prefer more freedom and consumer choice and larger numbers of ethical companies, but there's no lobby paying for those objectives, eh? (Statesmen? In America? The tooth fairy and Santa Clause have better survival odds.)

Having vented that, I'm glad of the outcome, even though I'm saddened it took so long. ALL spammers should be driven into bankruptcy.

Constructive suggestion time: Don't you wish that Google would enhance their unsubscribe system? Gmail could actually collect the data to figure out which unsubscribers are legit and which are harvesting for for spam. )However, I bet against Google doing it, since they have already traveled so far down the road of EVIL.)

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Boffin

@veti Not even close.

There's this section of law called tort law. Contractual Interference is a tort.

While you're trying to be silly, which I can understand, it doesn't help your argument.

Linhardt (E360) sued Comcast based on the argument that they were interfering with his 'ongoing business relationship' with his customers on Comcast. He claimed that Comcast was filtering out his e-mails specifically and that he was at an economic disadvantage from his competitors. And that because he had an existing business relationship, he had the right to send his emails unfiltered.

(This was done after he had his 11+ million dollar default judgment against Spamhaus...) In short, he was attempting to blackmail Comcast w his cartooneys. Note that Comcast tried to be reasonable and then slammed him in court.

With respect to Spamhaus, its a little bit more complicated than that.

Spamhaus maintains RKSO (Record of Known Spammer Organizations) [Going from memory...]

So Lindhart (E360) was listed as a known associate of a spammer in RKSO and was added to that spammer's entry. Now going from memory... Lindhart was booted from his ISP for spamming and was booted from a different ISP (Contract was pulled) because of his association with spammers. Here Lindhart alleged that someone from Spamhaus had 'tipped off' his new ISP that Lindhart was a spammer and was going to spam from the network which would have been against that ISP's ToS. (Terms of Service) Were this true and Lindhart was never a spammer, then it would be as claimed as tortuous interference with a business contract.

("Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.") [see http://legal-dictionary.thefreedictionary.com/Tort+Law]

The point is that Linhardt could sue Spamhaus or anyone that they had reason to believe to be associated with Spamhaus for committing said tort.

BTW, later in court documents, Lindhart admitted to being a spammer. He did this by identifying that he had an 'ongoing business relationship' as required by the law, to some 100+ million e-mail addresses. (Note: If this were true, then he would have been one of the more successful internet sales companies, more so than Amazon.)

[Note: Sending an e-mail that says 'thanks for subscribing to our mailing list, unless we hear from you, you're being "opted-in" to our mailing list...' isn't an opt-in request....]

Like I said, there's more to this case. I wonder if Mickey Chandler still has his website up detailing this and other spam related lawsuits....

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Business As Usual

"the point is that the spammer shouldn't have won in the first place,"

Of course they shouldn't, but as is oten the case a lower court found in favour of a US "company" against a foreign company.

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WTF?

@Grease Re:Monkey Business As Usual

'Of course they shouldn't, but as is oten the case a lower court found in favour of a US "company" against a foreign company.'

Huh? WTF? Didn't you pay attention to what has been written.

Lindhart won because Spamhaus/Linford walked away from the lawsuit. Steve Linford made a conscious decision to walk away and hand Lindhart a summary judgment. He did this because he viewed the costs of a legal battle to be too high along with the fact that he would be forced to divulge how Spamhaus catches spammers with their honey pots. There was real fear that he would be forced to divulge enough information that would give other spammers a way to defeat their detection systems.

There was no 'lower court' in this case.

Lindhart first files the lawsuit in Cook County, IL. Linford's lawyers take it to the Federal courts to argue jurisdiction. Do you get that? Linford's first batch of lawyers screwed up.

Please get your facts straight before you make some BS attempt of a political statement when the facts clearly show you don't know jack.

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WTF?

WTF?

If the spammer violated the US CAN SPAM Act then surely the case should have ended in Spamhaus' favour with them receiving costs + damages from the spammer? And maybe a referal to a criminal court to penalise them properly for breaking the law?

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The case wasn't about that

It was about Spamhaus affecting its Business, which it did by blocking its spam. Spamhaus is also a UK company and the spam wasn;t sent direct to them so I don't know how the CAN SPAM law applies.

However $3, thats bull spammers shouldn't receive a single pence, they should receive cut off internet connections.

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Boffin

Not exactly...

In part the case was about Linhardt being named in another spammer's RKSO entry.

(Yeah, its not just the filtering of spam. )

Linhardt used his short lived victory to go after Comcast for filtering his e-mails out.

(But that too backfired and is another story.)

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From my understanding, there were no Can-Spam violations

From my understanding, there were no Can-Spam violations presented and Spamhaus did not represent the owner of the receiving servers mentioned. Spamhaus had no claim, but e360 was impulsive and filed a suit out of desperation without the budget to back it up against free lawyers that Spamhaus had the benefit of.

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Boffin

@AC Re: From my understanding, there were no Can-Spam violations

You understand wrong....

Lindhart claimed that all the e-mails he sent were actually to people who had 'opted-in' to his mail list. Note the following: 1) Sending an unsolicited e-mail stating that you were opted-in until you opt-out is not an opt-in except in the minds of spammers. 2) Buying a marketing list from a reputable marketing company which includes e-mails and then claiming that they opted in to your promotions and is a clear violation of the contract you signed... again a no no.

[Note: Lindhart also sued said company in a different lawsuit.]

In fact, if you follow any of David Lindhart's legal battles, he's pretty much come out on the losing end of most. Except in the cases where he used the courts to harass several people online but that too is another story.

An even more interesting fact... during the past legal issues, Lindhart demanded and won the right to have Spamhaus remove his networks from Spamhaus' filters. Note that while this did not stop people from adding the net blocks on their own to their own mail servers, it opened the door to Lindhart to spam with impunity. Linhardt also tried to sell the right to other spammers by claiming that they too were affiliates of Lindhart and hence their networks should also be removed from the filters.

Oh yes. very interesting reading... You could write a book about spammers and Spamford Wallace, Pickle Jar, and Lindhart would be 3 very long and funny chapters. (Although with Spamford, you would have a couple of other chapters due to his activities post spamming AOL...)

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Indeed

£3 is still too much

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WTF?

Huh?

$3 minus five years of legal fees.

They get handed a banana and charged a plantation.

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Well

I think Spamhaus deserve Plantation AND Bannana.

And a bottle of Bannana wine by way of an apology - and a helper monkey to open it.

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FAIL

Why...

... should they have to pay anything? As hinted at in the article the UK has not yet become the 51st state of the USA. It seems to me that the US courts are starting to suffer from delusions of grandeur, their arm may be long but to coin an old phrase "their writ does not run here."

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I don't think...

That's it's overly accurate to complain about US courts taking UK companies to court, given the number of Americans who bring their US-based libel cases to UK courts, and that UK courts happily make judgements on them.

Our writ should not run there, but it does just as much as the other way around.

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Stop

@nametoad

Just because the company was located outside of US jurisdiction does not mean it still wasn't doing business in the States.... Which it was doing. That makes it legally liable for its US based business.

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WTF?

Opt In

Erm surely there was no case anyway. If an individual / company uses spamhaus then they have opted to use only the DNS / other stuff that spamhaus have allowed.

If they blocked this person then surely the people that wanted his messages would have stopped using spamhaus. You know it's not like your forced to (unless I am unaware of some strange new ruling).

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Boffin

@Ragarth Huh?

Uhm... you, John Q Public don't run a mail server. Your ISP does. Your ISP filters based on using Spamhaus, you don't have a say on who or what filters are in use.

Note that in addition to this... Michael/Michelle Sullivan runs a different organization which also is in use. Unlike Spamhaus, Sullivan (Michael/Michelle) is the same person BTW, doesn't do the same due diligence...

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Boffin

Just to clarify why ...

Spamhaus, under the advise of their first legal team moved the jurisdiction to federal court which automatically nullified their argument against jurisdiction. By doing this simple act, they in fact waived jurisdiction.

They then walked away from the case giving Lindhart a summary judgment with his hugely inflated claims against Spamhaus.

Spamhaus then got some good legal help from Jenner & Block, pro bono. J&B appealed the judgement. The appellate courts agreed that the judge erred in the amount of judgment, however, the upheld the summary judgment.

So since the judgment stands the courts must award something to Lindhart. Why $3.00 and not $1.00 is interesting.

Spamhaus won legal fees because Lindhart dragged his feet in responding and violated the rules of discovery. Essentially Lindhart could not demonstrate his alleged damages...

Very interesting story...

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Thank-you

For filling in some of the legal blanks for us, and hopefully abating the tide of 'wah, they shouldn't even have to pay $3' to a degree. I suspected that there was some legal wrangle behind the judgement. Was there not three cases at a dollar a pop, perhaps?

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@ Ian

So am I right in thinking what Spamhaus should have done is argued in the original court they didn't have juristiction on location grounds?

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FAIL

Sorry but Spamhaus still lost

What strikes me about this, is the way that the US court system seems to have bent over backwards to facilitate e360's case. The final summing up illustrates the true position: e360 won, but because they behaved like complete twats, they get $3.

Spamhaus did not cover themselves with glory by allowing the default judgement to go through, especially taking into account the manner in which they treated the court.

They both deserve each other.

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Boffin

@Frederic Bloggs... not exactly.

"What strikes me about this, is the way that the US court system seems to have bent over backwards to facilitate e360's case. "

The US court system didn't. In fact, one of the ironies of this case is that the US courts do use Spamhaus to filter their e-mails...

Here's the problem...

Spamhaus' original attorneys made a serious mistake. Note: I'm familiar with his initial firm and they are or were fairly reputable.

My guess is that in trying to cut costs, they tried to kill two birds with one stone by arguing that the county court (Cook County, IL) didn't have the proper jurisdiction to hear the case for two reasons... 1) Steve Linford is a UK citizen who doesn't reside in the US and Spamhaus has no US presence. 2) The dollar amount is > $75K (USD) therefore should be tried in Federal court.

I'm not sure, but I believe that it was Spamhaus' lawyers who brought the case to Federal court so that they could get it dismissed and Lindhart wouldn't be able to file. This would be killing two birds with one stone and would have saved Spamhaus at least $5-10K USD in legal fees. Unlike the UK legal system where the loser pays, in the US, everyone pays and only the lawyers win.

It was this mistake which opened the door for the lawsuit.

When Linford made the decision to walk away from the case, opening the door for the default judgment, the courts had no choice but to award Lindhart a summary default judgment. Steve Linford did this for a couple of reasons, the biggest is that it would have cost him and his company a ton of cash to defend themselves against a frivolous lawsuit and would have opened the doors for future lawsuits. The other big issue would be that in discovery, the spammers would learn how Spamhaus operated and thus making it less effective in trying to control spam.

So you have to blame Linford for one really bad decision, or his lawyers trying to cut corners.

In hindsight, I bet the judge would have been happier if he had just granted the initial argument about a lack of jurisdiction instead of going by the letter of the law.

So you can't blame the courts because they were following the law. Kocoras took a lot of heat, but he is a good and well respected judge and made the right decisions. He may have been sloppy in awarding the initial 11 million dollar judgment against Spamhaus. But then again, when you walk away from a case, the judge has to take what information presented to him at face value. This was the only door open to Spamhaus in their appeal. The appellate court let the default judgment stand.

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In case anyone is interested.

The $3 are nominal damages for tortious interference with contractual relations, claims of defamation and tortious interference with prospective economic advantage (i.e. $1 for each claim).

It's a worrying case as spamhaus is still guilty in the eyes of the court and if e360 had been more reasonable in presenting evidence then damages would have been awarded against them.

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WTF?

jurisdiction

The initial Spamhaus course was to ignore it, as they don't have any business or presence in the US. US lawyers then took on the case 'pro bono publico' i.e. as a charitable donation, because it isn't in the public interest for US courts to make such an ass of themselves, especially as seen from abroad. So as I understand it, this dispute is between a public-spirited group of US lawyers who have offered to defend a UK organisation free of charge which doesn't really need defending because it has no interests or assets at risk, and the US spammers who started the case imagining they could either cause significant expense and nuisance to a foreign entity if Spamhaus bothered to contest the case themselves, or win a default uncontested case and gain a propaganda advantage in the process.

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WTF?

So...

... a legit UK company has to pay damages to a US company that was breaking US law. All on the orders of a court that had no jurisdiction over the UK company in the first place.

Am I the only one that's a tad confused?

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Anonymous Coward

No need

There's no need to be confused. Just so long as you remember that the US courts think they have jurisdiction over the entire globe.

If I'm being entirely fair I don't think the US courts necessarilly believe that. They appear to have a system where they will award damages against a company with no US presence knowing that it would be unenforcible until such time as the company does have a US presence. Since this is likely to mean that the company is unlikely to ever have a US presence it seems completely pointless. However...

The US civil courts seem to be run mostly for the benefit of lawyers and the lawyers would still have got paid. Unless of course e360 filed for bancruptcy before they paid their legal bills. I really, really hope they did and as a result the lawyers never got paid.

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Flame

Does that mean ...

... that I (or Demon/Thus plc) can sue Comcast for blocking a whole wedge of IP addresses including mine so that I can't send an email to one of my friends in the USA? Apparently someone once sent spam from an ip address somewhere so they frequently block a whole ip range. Demon have to request unblocking on a regular basis, according to their helpline.

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Me no understand

Likewise what Fibbles quoted. Why did Spamhaus have to do anything at all, if based here in the UK? Surely an American court has no reach across the pond? Any judgement or legal action over there has surely got to be totally irrelevant in this country if they do not have a presence over there. Makes no sense to me.

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Boffin

@David 45

Linford's first set of attorneys made a big blunder.

Lindhart sued Spamhaus in Cook County. (Lindhart's blunder because of the alleged damage amount was > $75,000.00 USD. ) Spamhaus, rather than just arguing jurisdiction, also argued that Linhardt sued in the wrong court and that they should have sued in Federal court because of his claims of damages.

In hindsight, had Spamhaus first argued jurisdiction, they would have won that argument, then had Lindhardt then refiled in Federal court, The lawyers could have also argued against jurisdiction and would have won.

By redirecting and taking the case to Federal court, Spamhaus ended up losing their argument by jurisdiction. Then by walking away, handing Lindhart the summary judgment. So Spamhaus made a mistake and then compounded the mistake.

Lindhart knew that Spamhaus was UK based, however he and his lawyers maintained that they had a US presence because of customers in the US along with US 'volunteer' spam fighters.

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FAIL

Businesses that do not "do business in America" do not effect American business

Spamhaus claims non-jurisdiction because they "do not do business in the U,S.", but tell that to the guy that hosts a site in a U.S. data center and Spamhaus puts it on the SBL and sends a commercial SBL notification email to the ISP (with an auto-bot to a scraped email address) which is located in the U.S. that says "shut this guy down or we'll blacklist your IPs"...and that action is your "business". Well...

I think it's safe to say you are "doing business in the U.S."

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Anonymous Coward

One for the good guys

I hope Spamhaus is able to collect their legal fees. Personally I feel the Spammer should also get 15 years in prison.

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Angel

More single-digit damages awards

Could be a very healthy thing for litigation in USA and other countries.

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Another Aspect of this Case

Most commenters seem to be assuming that the US legal system actually works.

Going by what we read about IT and Patent related litigation this seems an unjustified assumption.

Personally I consider that any system where judges are elected is flawed. Think about it. You have judges elected by Americans trying a case between an American (electing) company and an overseas (non voting) one.

No-brainer anybody?

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Boffin

This is mostly from memory, and I'm not a lawyer (though I used to do investigations for one...) Remember this is the US, where states have power over the process - this means it depends on where you live. :)

In the US, Federal judges are appointed by the President and confirmed by the Senate. These are the US district courts, the US Circuit Courts (sometimes known as "court of appeals") and the US Supreme Court.

As I said this is the US, so the states all do things differently (and I had to look this one up because it's confusing.) 27 states appoint justices via the state Governor or a non-partisan commission. Most are appointed for a fixed term (usually 6-10 years), but 3 states (my state included) appoint them for life.

The remaining 23 states have elections for judges. 15 states use a non-partisan ballot (ie - no party affiliation is shown on the ballot), and 8 use a partisan ballot.

Easy, no?

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FAIL

The Judge States "Judgment for Plaintiff" - Meaning that Spamhaus LOST Again!

The judgement entry clearly states "in favor of the Plaintiff". Since when is it "prevailing" to lose the case. Spamhaus lost the case to begin with and had an $11.7 Mil. judgement against them. They appealed that and ended up with a $27K judgment against them. They appealed that and STILL have a judgment of some sort AGAINST THEM! That is called losing a court case. The media in America would never consider printing an outright lie as this is. It's a shame that your Register approves editorial disinformation.

Spamhaus fought tooth and nail for 5 years with free pro-bono law firm Jenner & Block, LLC. They manipulated the courts with constant filings that e360 could not keep up with. At no time did Spamhaus ever WIN this case! They have always had and will always have a judgment entry stating to the contrary and this media is a wonderful example of why the British Media is inaccurate and misleading to the people.

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Pint

You are...

David Linhardt and I claim my free pint

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Paris Hilton

As an American...

You should know that after all the talk, the winner is the gut with the most money at the end.

Spamhaus = Ongoing concern + 3 years of legal fees - $3

Scummy-Spammer-McTotalScumwhowehopeisreducedtowalkingthestreetsrentinghisorificesforheroin = Bankrupt - 3 years of legal fees + $3.

I see only one winner here.

Is this the same great and honest US media that has Fox News?

Paris: Because she knows that the money shot is all that matters.

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FAIL

First thing we do...

...is kill all the lawyers

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FAIL

@AC - Tuesday 6th September 2011 07:46 GMT

Dave, is that you?

Give it up, spammer.

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few things

Not all judges in the US are elected in the US.It's usually the head judge thats elected. Look a the size of America. 431 judges in places like LA county If every judge was elected we would all ways have elections At the federal level they are appointed not elected . I'm tired of reading BS of saying that of course they lost, they were foreign company . They lost cause they they pulled out , No precedent set here. It was a forfeit. You walk out you lose .

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