7th Circuit Court Opinion on e360 v Spamhaus

Hot off the press, courtesy of the excellent legal document site SpamSuite.com. Mickey Chandler breaks it down:
  • The default judgment stays (e360: 1, Spamhaus 0)
  • The money judgment is overturned (e360: 1, Spamhaus: 11,715,000)
  • The injunction is overturned (e360: 1, Spamhaus: 11,715,001)

Important bits:
Page 12: "We perceive no error in the district court’s conclusion that Spamhaus intentionally elected to abandon its available defenses when it withdrew those defenses from consideration by the court and indicated that it was prepared to accept a default. Spamhaus’ then-counsel confirmed that it wished to “participate in the defense no further” and “do absolutely nothing.” See R.56-1 at 3, 5. It was not erroneous to treat this kind of voluntary abandonment of defenses, raised but not pursued, as a waiver."

Pgs 18-19: "Mr. Linhardt’s affidavit is a conclusory statement of the lost value of his business, based largely on his calculations of lost future profits. It provides a list of businesses involved in “actual and pending contracts” and a total calculation of his calculation of loss, but says nothing about the status of his relationship with those businesses before e360 was listed on the ROKSO. That is, the affidavit claims profit loss in absolute numbers, but provides no information whatsoever to support a finding that such future profits were certain prior to Spamhaus’ act. Particularly given the difficulties that Illinois courts have acknowledged in proving non-speculative amounts of lost future profits, [citations omitted], this affidavit alone cannot provide the requisite “reasonable certainty” for a damages award without the necessity of a hearing. We therefore vacate the damages award and remand to the district court for a more extensive inquiry into the damages to which e360 is entitled."

Pg. 24: "According to the complaint, however, Spamhaus lists entities on the ROKSO for violating ISP terms of use, not “United States law.” The complaint does not allege that Spamhaus defamed e360 by claiming that e360 operated in violation of law. The facts supporting the default judgment, therefore, show only that e360 improperly was listed as a “spammer” by Spamhaus, applying Spamhaus’ own criteria. There is no basis in the judgment for an injunction that modifies Spamhaus’ generally applicable criteria for determining what entities qualify as spammers."

Now things will go back to the district court for redetermination of damages to be paid under the default.

Click on through to the SpamSuite.com page on this topic for more info and excellent analysis from Mr. Chandler.

SPEWS Memorial Day?

I see a very strange thing today (August 30th). APEWS, an "anonymous" anti-spam blacklist (whose listing policies are very broad and of questionable accuracy) has taken down their home page. When you go to www.apews.org, what you find today is a memorial message.

The message pays tribute to the administrator supposedly behind the previous SPEWS blacklist. It's true that SPEWS website and blacklist data stopped being updated approximately a year ago. However, here's no indication beyond this message that somebody actually passed away, or that a single person that somebody knew was actually previously maintaining the SPEWS data.

Here's a copy of the message found on the APEWS website, in case it's changed back by the time you look for yourself:

Today our website and our mailservers are not available, because it is 30. August - SPEWS MEMORY DAY

Our beloved SPEWS operator got hit by a truck and died 30. August 2006. One of his dreams was to make the world a spam free place. As long as spam exists we therefore recommend all of you to shutdown all mailservers at every 30. August for 24 hours.

Be creative to make today a black day for all spammers and spam supporters and a day without mail and spam.

It is just one day in the year so it will not hurt you nor your company, but it will set a wideley visible sign if enough people do so.

Our blacklists are online, but we will not display reasons for listings nor do any removals by today. We will be back by tomorrow. APEWS - Anonymous Postmasters Early Warning System.