E360 Shaking Down the Spamhaus?
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Itís a matter of definition, and of jurisdiction, to say nothing of all the finer legal points raised by the litigation between e360 Insight and the Spamhaus Project. And at this point, despite rulings by a U.S. court favoring the alleged spammer, the case could work itself out either way. But a wrong move could, in the long run, have a profound effect on Internet governance.
It's been a little tricky trying to untangle the "he said, she said" in this case. Let me state my prejudices up front: I'm all in favor of free speech, and I don't even object more than you'd expect to advertising speech, but I hate spam. So as you'd expect, I favor Spamhaus, but the volunteer organization did make a couple of mistakes in how it has handled this so far. With those points out of the way, let me tell you what I know of the facts of the case.
E360 Insight is a Chicago-based email marketing company, apparently a one-man outfit run by David Linhardt. In late June 2006 e360 filed a lawsuit against Spamhaus. The company sought an injunction and monetary damages because, so it said, Spamhaus had placed e360 on its Register of Known Spam Operations (ROKSO) list.
Spamhaus initially showed up in court, asking that the case be moved from a state court to a federal court. It was moved, but Spamhaus changed its tactics at that point, refusing to show up and maintaining that a U.S. court doesn't have jurisdiction over the organization since it is based in the United Kingdom. As a result of this, the court had to enter a default judgment in e360's favor. The judgment was issued September 13. Monetarily, it orders Spamhaus to pay e360 $11.7 million in compensatory damages and $1,971.05 in litigation costs. (Notably, the judge did not award e360 all the money it asked for - no punitive damages and no "attorneys' fees.").
While it's unlikely that Spamhaus, as a volunteer organization, actually has the money, it must have been the actions that it was ordered to take that grated the most. Among other points, the judgment ordered it to not "take any action to cause email sent by Plaintiffs...to be blocked, delayed, altered, or interrupted in any way..." unless Spamhaus can prove that the plaintiffs have violated U.S. law. Spamhaus was also ordered to display on its website a statement that the plaintiffs were listed by mistake and that they aren't spammers.
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