Slashdot Log In
Spammers Sue Spam Victim For $4 Million
Posted by
Zonk
on Thu Mar 17, 2005 08:53 AM
from the that's-a-lot-of-pork dept.
from the that's-a-lot-of-pork dept.
fronck writes "Self-declared anti-spammer Mark Mumma, a web hosting and email service provider, has apparently been sued for just under $4 million by cruise.com and their parent company Omega World Travel after they were ordered to stop sending him emails and comply with Oklahoma's CAN-SPAM act. Mumma intends to see the trial through court and meanwhile the spam continues unabated. More insight available at Ars Technica."
This discussion has been archived.
No new comments can be posted.
The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
Full
Abbreviated
Hidden
Loading... please wait.
Counter Suit (Score:5, Insightful)
They have kindly set the level for the quantum of damages.
You've missed the point (Score:5, Insightful)
Parent
Re:You've missed the point (Score:5, Informative)
I'm going to make a few assumptions here:
1) That the Defendand doe indeed have no significant contacts to the state in which the suit was filed.
2) That trademark infringement has similar rules to copyright infringement, which require the action to be brought in a district in which the defendant "can be found."
3) That the usage of the spammer's trademarks are *clearly* and *indisputably* within the realm of fair use and satire.
If all of these apply, it is hard to fathom a good-faith basis for an attorney to have believed that an action should have been justified.
With that conclusion, the filing would be in violation of Rule 11 of the Federal Rules of Civil Procedure, and counsel for the plaintiff would be subject to sanctions, including court costs.
Furthermore, in most states, sanctions in excess of $1,000 or so (except for discovery sanctions) must be reported to the state bar for disciplinary purposes.
Additionally, the filing of a complaint with no good faith basis is a violation of ethical rules, and subject to discipline. Assuming that it is the attorney's first offense, I'd be surprised if it results in disbarment or even suspension; more likely a reprimand or private cautionary letter.
hawk, esq.
Parent
Re:You've missed the point (Score:5, Funny)
do you have any recommendations of websites for that?
Parent
Overlawyered.com : "Loser Pays" (Score:5, Informative)
It's possible, but I don't know how likely it is. The trial lawyers, being a very powerful lobby, have consistently opposed the idea. See http://www.overlawyered.com/archives/000199.html [overlawyered.com]
Go to http://www.overlawyered.com/archives/000199.html [overlawyered.com] to read the rest of it.
An example from Overlawyered.com's "Loser Pays [overlawyered.com]" archives (bold added):
Parent
Wow, just wow. (Score:5, Interesting)
Re:Wow, just wow. (Score:5, Insightful)
Just like the judge smacked down the suit against Oreo cookies making people fat?
Parent
Re:Wow, just wow. (Score:5, Funny)
Oreo's can make you fat?!?
Parent
Re:Wow, just wow. (Score:5, Informative)
The lawsuit was about how Oreo cookies did not disclose that they contain trans fatty acids (for which the safe level of consumption is 0 grams per day. Each Oreo cookie used to contain 1 gram of trans fat). This is like suing a company that fails to disclose that they are using a poison to hold the cookie together (which what hydrogenated fats should be, and practically have been, classified as). (disclaimer: you should read up on trans fats. not all trans fats are man made, artificial, or necessarily unhealthy.)
Parent
Re:Wow, just wow. (Score:5, Informative)
There are no FDA regulations that say you have to show the amount of transfatty acids, unlike everything else you see in the package.
So, yes, they fully expected the suit to be smacked down.
Parent
trans fats not that bad (Score:5, Interesting)
They are provably not anything like a poison though. They have become a huge part of the US diet over the past 100 years. Our expected lifetime has grown over that time, and is greater than that of many places that don't use trans fats. If trans fats were all that bad, we'd have noticed many decades ago.
So don't be exaggerating to the point of dishonesty. Have a cookie.
Parent
Re:trans fats not that bad (Score:5, Interesting)
Why is it Amercians automatically assume they are the best at everything? Sorry to pop that little bubble, but you aren't even close. The US scrapes in at number 50 [nationmaster.com] in the world for life expectancy. In a list of 50.
Plus, the US health system is regarded as one of the worst in the free world. You acknoledge this yourself with "for those that can afford it". One thing I take issue with is the idea that doctors personally profit from what treatments they prescribe. Sure, doctors should be more trustworthy than car mechanics, but it's a dangerous set-up if you ask me.
Ironically, Cuba is seen as having one of the best health systems in the world. Go figure...
Parent
Re:Wow, just wow. (Score:5, Interesting)
Parent
SCO (Score:5, Informative)
To dismiss a case on the initial filing, the judge must find that even if everything in the complaint were proved, the plaintiff would not be entitled to relief. That's not the case when alleging copyright infringement.
The next chance would be a summary judgment motion. At that point, evidence is weakly tested with the presumption that the fact finder (judge or jury) will take it in its most favorable light, and the evidence for the other party in the least favorable. If no reasonable person could find for the plaintiff under those circumstaances, then summary judgement is granted.
That's not a hard standard of the plaintiff to meet . .
hawk, esq.
Parent
Whats the rest of the story? (Score:5, Insightful)
That said, if the company *IS* prosecuting on those grounds, an out of court settlement involving some guys named Vinny is probably at least as effective.
W
Re:Whats the rest of the story? (Score:5, Insightful)
Parent
Re:Whats the rest of the story? (Score:5, Insightful)
I believe at least part of the problem (though I may be wrong in this case) is that the spammers who send the advertising and the people who are selling the product are two different companies. In a sense, the spammers have no financial interest in you actually buying the product, other than in that it maintains the image of spam as an effective advertising medium.
Or even when they are the same company, it seems that companies who advertise through spam aren't relying on the inherent good-quality of their product for sales.
So when it comes to legal action, the spammers aren't so worried about making the product look bad, or even making spam look bad (after all, it already looks about as bad as it's going to). What they're more worried about is their right to continue spamming.
Parent
Re:Whats the rest of the story? (Score:5, Insightful)
I once recieved an abusive letter (Pinned under the windsheild wiper of my car) from another tenant in the same building where had just moved in. They were complaining that I was parkign in a spot that they had rights to and were paying for and which happened to be the best spot available. I returned a very polite letter that I made sure was ice cold and factual outlining that the parking spaces were numbered as where the apartments and that according to my rental agreement this parking spot Nr. X belongded to my aparment Nr. X and that I was in fact paying for it. There were no insults, no abuse and no gloating in the letter, I just explained that they were in fact squattin on my parking spot, not the other way around. I never heard from them again. The the moral of the story is that the biggest mistake you can make is to get carried away in an Oh, goody, I'm in the right... Now lets REALLY chew them out! type frenzy. Alot of people end up making the mistake of hurting their own case by getting abusive or even insulting and thus ruin their position.
Parent
Re:Whats the rest of the story? (Score:5, Insightful)
It's absolutely astounding, the sheer number of people who don't realize that.
Parent
Standard SLAPP suit (Score:5, Informative)
Many states are adopting Anti-SLAPP [gigalaw.com] legislation that should make this easy to get dismissed and as TFA suggests impose sanctions against the plaintiff.
Re:Standard SLAPP suit (Score:4, Informative)
Firstly, while I wholeheartedly condemn spam and spammers, we should note that the "article" we all read was actually a press release by one party in litigation. There are probably some additional facts we don't know.
For example, it appears that Mummers sues many spammers in his home jurisdiction (OK) because of the favorable laws there, and makes a tidy profit off of his side business of suing spammers. While the spammer in question is no doubt sleazy, it seems that they knew a lawsuit was almost certainly coming in Oklahoma, so they pre-emptively filed it in Virginia (their home turf) so as to make it easier to litigate.
Parent
Re:Standard SLAPP suit (Score:5, Insightful)
This lawsuit is more intended to make the owners of cruise.com appear to be victimized, that's all there is to it. It's a fairly common move in litigation of this nature, and it rarely works out in the spammer's favour. Usually these things get dismissed from court.
Parent
Re:Standard SLAPP suit (Score:4, Insightful)
Even if Mr. Mummers does engage in suing spammers on a regular basis, and even if he makes a tidy living from it, this doesn't mean his suit is without merit. Unless he's abusing the law or the system (impossible for us to know without all the facts on hand), more power to him...
Parent
Slashdot should hire the Ars people (Score:5, Insightful)
America, land of the free...lawsuit (Score:5, Insightful)
Re:America, land of the free...lawsuit (Score:5, Insightful)
A) The corporation manages to live through the lawsuit to begin with, and
B) They're not sued by a front corporation that declares bankruptcy, folds up, and disappears.
Parent
in a couple of cases, though . . . (Score:5, Interesting)
In other places it's not so easy
I handled an eviction in El Cajon, CA, in which the deadbeats had watched too many programs about San Francisco evictions.
There is a five day response period. They filed a "motion to quash service" on the grounds that "the process server is a suspected relative". That was enough to put it on the court calendar over a month away . . . (no judge looks at the answer; it just automatically schedules a hearing)
I went in and got an "order shortening time" for a hearing the next day to quash their motion. The judge agreed that it was silly. Normally they would have had five days from then to file an answer or be out. I argued that as a sanction for the frivolous filing, time should be shortened to answer. She gave them until 5:00 the next day.
They thought that they'd been ordered out, and were gone by then . .
hawk
Parent
Only in the US (Score:5, Insightful)
This is just another symptom of the twisted legal system that has been allowed to evolve in the US. When will legislators realize that it's time for serious legal reforms to end these types of frivolous, baseless lawsuits that are intended only to intimidate and harass?
Re:Only in the US (Score:5, Insightful)
Unfortunately many of the legislators are lawyers. It's not in their interest for this state of affairs to end.
Parent
Why does this meme spread? (Score:4, Insightful)
"The shoddy state of software today will last for as long as we have programmers. Because, after all, it's not in their interest for this state of affairs to end. If software becomes reliable, they're out of a job."
If someone were to come on Slashdot and say this, a few people would loudly agree with them and quickly get modded -1 Troll. A lot more people would accuse them of being arrogant, closedminded and just generally stupid. Of course many--most!--programmers want reliable software. The benefits to us of reliable software are myriad and manifold. No more calls at 2am on a Sunday because the server crashed. No more scouring BUGTRAQ looking for the next exploit we have to defend against. No more wondering whether the software flying the airplane we're riding on was written by lowest-bidders working in Bangalore.
The benefits to programmers from reliable software are so clear, so obvious, that we would laugh at anyone who seriously proposed that we deliberately kept software unreliable.
And yet, the instant you say lawyers are deliberately keeping the legal system difficult, people nod their heads understandingly and compliment you on your wisdom.
The benefits to a clean, efficient system of law are so huge and so obvious that, without exception, every single lawyer I know--and I know quite a lot of them--is an advocate for streamlining the legal system.
The problem is that society is huge. The machinery of government is truly gargantuan. These enormous edifices of government were put in place for a reason: because as obnoxious as they are, they're a lot better than what came before. (Take the Voting Rights Act as an example. It's a colossal piece of legislation and is a constant pain in the ass during election years. But it's a lot better than Jim Crow.)
So the problem Congress faces is, how do they pare government down and streamline it without returning us to the Bad Old Days we're trying so hard to avoid?
This is a tough, tough problem--all the moreso since the law is, almost by definition, a safety-critical system.
Imagine that you're given 100 million lines of source code. You're told, "Here. A lot of people are unhappy with it and they want major change right now. Oh, and while you're trying to strip out a few million lines and reduce bugcount, our coders are going to continue to write code to adjust to the ever-changing needs of our clients. Finally, remember that any bug you introduce has the potential to affect billions of people worldwide. Have a nice day!"
Please, try looking at the problem as a pragmatist and a realist, not with the simple and sophomoric eyes of a cheap cynic. The world is more complex, and a far richer place, than can ever be sufficiently explained with cheap cynicism.
Parent
We need to knock them off their horse (Score:5, Interesting)
A common tactic nowadays. Take someone to court even on a frivolous charge, knowing they can't afford to play the legal game. This works until someone takes the bluff and says, "OK, buddy, I'll see you in court and I intend to make you lose, and lose badly." For that you need a deep-heeled "victim," precisely the type that tends not to get sued in these sort of situations.
But every now and then a bully miscalculates, as we saw with SCO versus IBM. So what we need is for someone with bucks to take on these spamming sleazes, point out they are misusing the law with these abusive lawsuits, and knock them off their high horse.
Re:We need to knock them off their horse (Score:5, Insightful)
And even in these cases, the bully gets away by declaring bankrupcy (effectively nullifying any judgement against them), dissolving the offending "corporate entity", and re-forming a little while later under a different name (using assets they manage to illegally hide before vanishing).
It's a nasty weapon which can be most effectively wielded by the nastiest creatures. Normal productive law-abiding citizens can only get shafted.
Kinda makes vigilantism look appealing, sometimes.
Parent
Re:We need to knock them off their horse (Score:5, Insightful)
No, not at all. But in SCO's case their assumption seems to have been that IBM wouldn't want to bother with a protracted legal case and would want to settle for less money that it would cost to defend themselves. That was the miscalculation. A sleazy outfit such as SCO never figured on IBM caring about their reputation in the marketplace, and so seems to have been caught off-guard by IBM's willingness to go the distance in erasing SCO from the face of the earth.
Parent
Will there be another win or a first defeat? (Score:5, Interesting)
Copied:
SUEaSpammer.com and SUEDbySPAMMERS.com are trademarks of MummaGraphics, Inc. Cruise.com is a registered trademark of Omega World Travel, Inc.
MummaGraphics, Inc., founded in 1993, is a provider of Internet web hosting and web site design services and has begun directing its energies to curbing unwanted junk email, a/k/a. spam. MummaGraphics began suing spammers in August 2004 and intends to file several more lawsuits in the future. MummaGraphics, Inc. is currently undefeated in court.
Look at the press release. (Score:4, Interesting)
Easy slashdot links (Score:5, Informative)
here [cruise.com] and
here [owt.net]
Please click away
Headline (Score:5, Insightful)
loser pays court fees (Score:5, Interesting)
You have ALL missed the point (Score:5, Informative)
For example, head over to SueASpammer [sueaspammer.com], and you will see right off the bat he calls for people to
Reading a little further, he implies that people should falsify their identity when OPTING IN TO AN EMAIL LIST, and then later using that as leverage (e.g. say "Who the hell is Joe Blow? My name is John Public). I'd have to look into any applicable law, but in my dictionary [answers.com], that constitutes fraud.
Number three, if you read Omega's suit, they allege that Mumma did not comply with the provided opt-out procedure, but instead called them and almost immediately started threatening them. Mumma allegedly would not provide his information so that they might comply with his "request" to be removed. Instead, he was belligerent, insulting, and threatening. This may not be illegal, but it is certainly in poor taste and is a mark against him. Lawyers and judges don't want to deal with fanatics, for the most part - they want to deal with reasonable people that have a legitimate claim.
Number four, since Mumma's request for removal was NOT VALID via his own stupid actions, and since he allegedly SIGNED UP for this "spam," via indirect admission at SueASpammer.com procedures, this is not a valid claim under CAN-SPAM. Furthermore, this also invalidates Mumma's claim under Oklahoma law, see 776.5.3 at SpamLaws OK [spamlaws.com].
I would not at all be surprised to see Omega et al. come out of this not only unscathed, but smelling like a rose.
You've misread his website. (Score:5, Informative)
Next: why should he comply with their opt-out procedure. Had you read the article carefully, you would see that he talking about spam that he certainly did not opt in to, merely responded to.
I hope and expect he will win.
Justin.
Parent
Re:You have ALL missed the point (Score:5, Informative)
1. The idea of committing the crime came from law enforcement officers, rather than the defendant.
2. The law enforcement officers induced the person to commit the crime.
3. The defendant was not ready and willing to commit this type of crime before being induced to do so.
Even if it did apply in civil cases (which it doesn't), this wouldn't even come close to entrapment. Not one of the three legal conditions was satisfied. Basically, you've made the mistake of thinking that traps and entrapment are one in the same, but they're not.
Furthermore, though it may be fraud in a loose sense of the word, it doesn't even come close to criminal fraud. Thousands upon thousands of cases have hinged upon evidence gained from FBI agents posing as 13-year-old girls or undercover cops posing as crackheads, all of whom give phony names. Giving a false name for the sake of obtaining evidence is completely legal, unless that false name gives the impression that you are another specific person (e.g., if you are a drug dealer and the cop comes to you claiming to be your boss). Random names, though, are just fine.
Parent
Am I the only one that read the suit? (Score:5, Interesting)
I realize that this may be a very unpopular opinion on slashdot, but If half the things they allege in their suit are true, this guy is about as unscrupulous as most spammers. Companies aren't the only ones that can bring frivolous lawsuits in an attempt to get the other side to settle rather than go to trial. Of course, we probably don't have all the facts from either side, so the truth is likely somewhere in the middle.
My other idea (Score:4, Insightful)
Create a black webpage, with black background, and all text, links, and viewed links as black.
In clear, concise, plain English, post said e-mail address with explicit instructions that no commercial interest may send you unsolicited e-mails, nor will the owner of the address ever opt-in to any mailing list.
Make sure you link to this black page from someplace else, so the web bots can find it.
When spam arrives, give them ONE CHANCE to follow the law and their own printed disclosure to remove you from their lists. Save all spam and spam removal requests as evidence.
1. Post e-mail
2. Unsubscribe
3. Sue
4. PROFIT!!!!
Worked for cruise.com (Score:5, Informative)
Re:Hmm (Score:4, Insightful)
Parent
Re:What a great ad! (Score:5, Insightful)
Parent
Follow-up (Score:4, Informative)
"Omega World Travel has argued that Mumma violated their trademark and copyright by using images of the company's founders and the company's logo on his website, and they also allege that Mumma defamed individuals associated with Cruise.com by posting personal insults on his site."
I don't want to appear to support spammers, but if there is merit to the claim, Mumma might have been asking for this.
Parent
Re:Follow-up (Score:4, Interesting)
Parent
Re:I'd like to know more (Score:5, Informative)
1.Defamation (for calling them spammers)
2.Trademark Infringement
Parent
Re:You got that wrong my friend... it's... (Score:5, Funny)
spammers are shot on sight.
It's just that noone can find them for some reason.
Parent