Mailing List SIMS@mail.stalker.com Message #10757
From: Neil Herber nospam <nospam@mail.eton.ca>
Subject: taking spammers to court (was: Re: Maximum #of Entrys in the Blacklist)
Date: Fri, 26 Apr 2002 11:11:03 -0400
To: SIMS Discussions <SIMS@mail.stalker.com>
It is rumored that on or about 2002-04-26 7:42 AM -0600, LuKreme wrote as follows:
 >I'm not sure what you are talking about. There has never been
    a lawsuit over RBL-style blacklists which has been
    decided in a court.

There have been lawsuits from spammers against ISPs that blocked their
spam.  AOL, for one was sued and lost to a spammer.

A close parallel is the case of PaeTec Communications, Inc. versus MonsterHut. In this case, MonsterHut contended that complaints filed by Spamcop users were, in fact, removal requests which they would honor.

PaeTec's agreement with MonsterHut expressly prohibits the sending of spam. In reliance on the complaints it received from Spamcop users and others stating that the e-mail received from MonsterHut was spam, PaeTec informed MonsterHut that it was terminating its contract.

MonsterHut responded by commencing litigation against PaeTec. Prior to PaeTec being advised of the existence of the litigation, MonsterHut obtained a temporary restraining order from the Court, which prevented PaeTec from terminating MonsterHut's contract pending a hearing at which both sides could
present evidence.

http://litigation.paetec.net

Despite the fact that their behavior seemed to directly contravene PaeTec's TOS, MonsterHut succeeded in convincing the court that PaeTec should not cut them off. PaeTec appealed and their appeal was heard April 18, 2002 (no decision as yet).

One of the arguments used in the case was that because "only" 1800 complaints were received out of a total of 69 million emails sent, and because only 180 of those complaints were backed up by affidavit, the 2 percent threshold for spam complaints had not been crossed.

If you have the time to read any or all of the case docs:

http://litigation.paetec.net/casedocs.html

I am sure it will provide you with lots of food for thought concerning your own TOS and what you would do if confronted by a customer as tenacious as MonsterHut.

--
Neil

Neil Herber, RGD
Corporate info at http://www.eton.ca/
Eton Systems, 15 Pinepoint Drive, Nepean, ON, Canada K2H 6B1
Tel: (613) 829-4668

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