Antispam Activists Win (and Lose) in Court

Antispam activists have won a major battle. Now they have to figure out how to pay for it.

U.S. District Court Judge Donald M. Middlebrooks has dismissed a suit brought by EMarketersAmerica.org against nine antispam activists. However, the judge also denied a request that the plaintiffs pay all attorneys' fees. That means the defendants--the antispam activists--are stuck with a sizable legal bill.

The original lawsuit was filed in April by an anonymous group of e-mail marketers led by Boca Raton, Florida, attorney Mark Felstein. The complaint alleged that the antispam activists had interfered with contracts between the marketers and their ISPs, by petitioning the ISPs to drop the marketers from their networks.

However, the plaintiffs then filed a motion for a dismissal of their own lawsuit--a move that is not entirely unusual in legal proceedings. What is rare, however, is that they asked the suit be dismissed with prejudice, meaning that the plaintiffs cannot bring similar charges against these individuals in the future.

The defense had also filed a motion for dismissal, and asked the plaintiff be ordered to pay for all attorneys' fees. This motion was not granted.

"While I am disappointed the court did not impose attorneys' fees against Felstein or his clients, I am nonetheless elated by our clear victory in vindicating the rights of spam fighters," says lead defense attorney Pete Wellborn.

The NANAE Nine

The antispam activists named as defendants are Spamhaus, SpamCop, the Spam Prevention Early Warning System (SPEWS), and nine individuals associated with these sites. The sites maintain blocklists of alleged spammers, which ISPs and corporations use to filter mail coming into their organizations. Spamhaus and SpamCop also urge spammers' bandwidth providers to cut off suspected bulk e-mail operations. In the original complaint, EMarketersAmerica alleged the list operators engaged in restraint of trade and interference with bandwidth contracts. Felstein says he asked the suit be dismissed because pending federal antispam legislation will render it moot.

"If the government does what it should do, there's nothing to be gained by proceeding with the litigation," he says. However, no federal bills under consideration have any provisions that outlaw blocklists.

Felstein has steadfastly refused to name the individuals behind EMarketersAmerica, though activists believe alleged spammers Eddy Marin and Brendan Battles may be two of its members. The defendants, all of whom are outspoken critics of spammers on the news.admin.net-abuse.email (NANAE) newsgroup, have been dubbed the NANAE Nine.

The suit is just one of several recent attacks against spam-fighting organizations. Over the past few months a series of distributed denial of service attacks have rendered several spam blocklists, including SpamCop and SPEWS, temporarily inaccessible. Three list operators, including defendant Joe Jared, have opted to discontinue the lists due to the cost of defending themselves against attacks.

Paying the Price

Defendants see the decision as a Pyrrhic victory--they've won on the merits, but lost the opportunity to unmask their opponents and now must pay the cost.

"In a better world, Felstein would be liable for these charges, not us," says defendant Adam Brower. "His only intention was to harass us."

After the decision, attorney Wellborn offered to reduce his fees by $40,000, which he calls "part of my contribution to the war on spam." That leaves the defendants with around $30,000 in legal bills. The SpamCon Foundation has established a fund for contributions to pay for the defense.

Still, activists believe the court's decision will discourage similar suits.

"I daresay that no spammer will be anxious to jump into the hot seat from which Felstein narrowly escaped with his wallet," Wellborn says.

And it's sure to make some spam fighters more determined, not less.

"[Felstein] thought we would wet our pants the minute we found out we were getting sued," says Susan Wilson, another defendant. "If anything, I'll be more in their faces than I've ever been. Their little plan to get rid of us really backfired."

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