1. I applaud the decision of Judge Armstrong to dismiss OptinBig's motion for a preliminary injunction against SpamCop pending trial.

Having read the statement of claim it was evident this particular claim was likely doomed to fail.

However, there is one aspect of the decision which is potentially cause for concern. CAUCE says this on its web site about SpamCop:

"A tool that allows you to paste in spams that you receive, and then traces the source of spams and assists you in complaining to the spammers' ISPs.

(WARNING! The tools provided by SpamCop can be very helpful in assisting you with deciphering spam and filing complaints. But the tools are not fool-proof and occasionally result in erroneous analyses, which can result in filing complaints about the wrong people or sending them to the wrong ISPs. So caution must be exercised when relying upon SpamCop's recommendations. Also note: SpamCop runs a "blacklist" that is highly controversial and has proven to be very unreliable. There are frequent reports of SpamCop's blacklist erroneously listing confirmed opt-in email as spam! For these reasons, CAUCE does not recommend use of the SpamCop blacklist.)"

http://www.cauce.org/about/resources.shtml

This was reflected in Mr. Ray Everett-Church filing a declaration in support of OptinBig's motion. The Court in a footnote to the decision noted:

"Mr. Ray Everett-Church puts himself forward as an industry expert and a member of the Coalition Against Unsolicited Commercial Email. (Everett-Church Decl. ¶ 2.) He declares, “the lack of objective criteria and the apparently low threshold of complaints needed to be placed on their ‘blocklist,’ combined with the fact that anyone can submit a complaint about emails they receive whether or not the email was actually spam, can result in a high false-positive rate for declaring a particular email service provider to be a source of ‘spam.’” (Everett-Church Decl. ¶ 7.)"

What is interesting about the decision is that the Court stated:

"The Court questions, however, whether SpamCop can be held responsible for an upstream ISP’s determination to cut bandwidth when it knows that reports sent to both it and its downstream ISP may be duplicative. It would seem that
given the industry knowledge about SpamCop, ISPs must make their own determination as to what weight, if any, they will give SpamCop’s reports."

In reaching this conclusion, the Court referenced the supplemental declaration of Mr. Ray Everett-Church in a footnote to this comment, as noted above, but then when on to state:

"Because the Court strikes OptIn’s supplemental declarations, the Court did not consider Mr. Everett-Church’s declaration in rendering this decision."

(See generally pages 14 to 15 of the decision.)

My point? How would the Court have responded if an emailer which had a good reputation as a solicited emailer had brought a claim against SpamCop?

Also would the Court have reached the same conclusion that SpamCop was immune from suit under the Communications Decency Act?

I raise these questions for the simple reason that although SpamCop has and continues to play an important role in the fight against spam, with the Court raising serious questions about the value of SpamCop's reports (essentially finding they are worthless), in reality did not both sides lose.

True, OptinBig lost the application and in the normal course of events this would mean the end of the law suit.

But, given the Court's findings, how can ISPs now rely on SpamCop's reports without exposing themselves to potential liability?

John Glube
Toronto, Canada

Posted at 4:51AM on Dec 19th 2005 by John Glube

2. I have to say this is very ironic for me as I am experiencing the almost exact situation as Mr. Richter. Our company has had 2 of our own websites suspended, one for good because of a 3'rd party company named SpamCop. One of our sites was reported for sending nigerian scam email! This is definately not true, but it is hard for me to chuckle when facing the trouble my business is about to endure. We are also in Florida where there is no spam law implimented.

To me this is extortion. "Either you get rid of the website we reported to you Mr. Hosting Provider or we'll break your knee-caps!"

I talked to the FTC by telephone for alomost an hour going over the CAN-SPAM act which the president signed that says: I CAN SEND AN EMAIL TO ANYONE I WANT AS LONG AS I FOLLOW SAID GUIDELINES".

Since when can a 3'rd party company supersede a federal ACT and the FTC? The fact is that BIG business is causing yet another problem in America. Are you surprised? Look at all the past issues the USA has had ie.: Enron, ImClone, etc.. Heck, Even PayPal/Ebay were one way or another involved in illegal offshore gambling at one time.

Seeing that I am a below the knee amputee and the fact that new prosthetic limbs cost $14,000.00+. My websites have to be successful or I do not get to walk.

As it stands now when looking for new email box's and hosting providers. The moment I mention anything about SpamCop I either get hung up on or told, "we can't help you". I say they're partly to blame. But hey, if our websites dont do well we wont need their hosting anymore. That means they will make less money. Yet another reason I dont see why hosting companies are not backing up their clients that are sending legal email. You do have to think about that "we'll break your knee-caps" though. They might want to back their clients up but are afraid for their companies welfare! THIS IS EXTORTION! Rather simple really.

Mr. Richter, we are behind you 100%. If we can help you or anyone else in anyway, contact us @ 1-866-556-9573

So they called you the "Spam King" huh? Funny thing is the vast majority of end users don't know the difference between real spam ie. : spoofs, scams, mail you cannot respond to, mail you cant stop getting over and over, mail from fake a company or fake person etc... and a legal marketing email from a good ol' USA company whos' name is not Amazon or Ebay.

Posted at 4:51AM on Dec 19th 2005 by Paul Belinne