Subject: Changes to New Draft

From: Ted Gavin <[email-masked]>
Date: Tue, 13 Jun 2000 15:15:15 -0400

To all;

I made Donald's reccommended changes to the draft, and eliminated some
of the excessive blank lines (don't know how they got there <shrug>).

The most recent working version will always be available at
http://members.bellatlantic.net/~tedgavin/draft-ietf-run-adverts-02.txt

JC Dill has volunteered to gather some relevant cites that show domain
owners successfully suing for damages after smappers have used their
domain name fraudulently (such as AOL.COM), as well as cites that will
show awards of damages for spamming-as-theft-of-service. JC, if you
need any help, don't be shy about asking the list!

Thanks, everyone!

Ted

---

From: JC Dill <[email-masked]>
Date: Fri, 16 Jun 2000 09:07:23 -0700

>need any help, don't be shy about asking the list!

***************************************

This reply has 3 sections:
Citations for section 2
Rewording issue for section 2
Citations for section 8

***************************************

Citations for section 2:

I've gotten feedback from 2 excellent industry lawyers.  I need to track
down the best freely accessible online web pages to use for online
citations to the cases they recommend as precedent setting - I should have
that early next week.

The most often mentioned seminal case is:
(quoted and linked from <http://www.jmls.edu/cyber/cases/spam.html>)

CompuServe Inc. v. Cyber Promotions, Inc.

      CompuServe Inc. v. Cyber Promotions, Inc., No. C2-96-1070 (S.D. Ohio
Oct. 24, 1996) (temporary restraining order) [WWW], preliminary
      injunction entered, 962 F. Supp. 1015 (S.D. Ohio Feb. 3, 1997) [WWW |
Lexis | Westlaw], final consent order filed (E.D. Pa. May 9, 1997)
      [WWW].

http://www.leepfrog.com/E-Law/Cases/CompuServe_v_Cyber_Promo.html
http://www.jmls.edu/cyber/cases/cs-cp2.html
http://www.jmls.edu/cyber/cases/cs-cp3.html

I was also told to "pay special attention to the AOL cases":

America Online, Inc. v. Cyber Promotions, Inc.

      America Online, Inc. v. Cyber Promotions, Inc., No. 96-462 (E.D. Va.
complaint filed Apr. 8, 1996) [WWW] (subsequently consolidated with
      Cyber Promotions' action filed in E.D. Pa.).

      Cyber Promotions, Inc. v. America Online, Inc., C.A. No. 96-2486,
1996 WL 565818 (E.D. Pa. Sept. 5, 1996) (temporary restraining order)
      [WWW | Westlaw], rev'd (3d Cir. Sept. 20, 1996), partial summary
judgment granted, 948 F. Supp. 436 (E.D. Pa. Nov. 4, 1996) (on First
      Amendment issues) [WWW | Lexis | Westlaw], reconsideration denied,
948 F. Supp. 436, 447 (Dec. 20, 1996) [WWW | Lexis | Westlaw], temporary
      restraining order denied, 948 F. Supp. 456 (E.D. Pa. Nov. 26, 1996)
(on antitrust claim) [WWW | Lexis | Westlaw], settlement entered (E.D. Pa.
      Feb. 4, 1997) [NEWS.COM report].

America Online, Inc. v. Over the Air Equipment, Inc.

      America Online, Inc. v. Over the Air Equipment, Inc. (E.D. Va.
complaint filed Oct. 2, 1997) [WWW] [NEWS.COM report], preliminary
      injunction entered (Oct. 31, 1997) [NEWS.COM report], settlement
order entered (Dec. 18, 1997) [Wired News report].

America Online, Inc. v. Prime Data Worldnet Systems

      America Online, Inc. v. Prime Data Worldnet Systems (E.D. Va.
complaint filed Oct. 17, 1997) [WWW] [NEWS.COM report].

Other America Online lawsuits

      America Online has filed several other suits related to unsolicited
bulk e-mail. Details are available on the AOL Legal web site.

Again, I'll look into this more early next week.

***************************************

Rewording issue for section 2:

Both of lawyers were unhappy with the wording in section 2, namely:

             Civil and Criminal litigation (in the United States,
             and progressively in other sovereign states, it is
             becoming accepted as fact that the theft-of-service
             associated with spamming is equatable to real theft)

It was recommended we change the ending:

             Civil and Criminal litigation (in the United States,
             and progressively in other sovereign states, it has
             become accepted as fact that the theft-of-service
             associated with spamming often constitutes an
             unlawful use of private property and is actionable
             as trespass to chattels).

They are lawyers, it is legalese. :-(

Given their feedback, I recommend the draft be changed to say:

             Civil and Criminal litigation.  In the United States,
             (and progressively in other sovereign states), it has
             become accepted as fact that the theft-of-service
             associated with spamming often constitutes an
             unlawful use of private property and is actionable
             as trespass to chattels (a legal civil court term
             tantamount to "theft") in civil court.

(Note that by making this last bullet point into a 2 sentence paragraph, to
keep the bulleted list's parallel construction we would have to add
punctuation to the other 3 bullet points.  Simply ending them with a period
would probably suffice.)

***************************************

Citations for section 8:

    " DON'T forge E-mail headers to make it look as if the
    messages originate from anywhere other than where they
    really originate. Many domain owners have won litigation
    against advertisers who have used their domain name in
    an effort to conceal their true identity."

This claim is much easier to cite.  We can use the precedent setting
flowers.com case:

http://www.rahul.net/falk/zilkerjudge.txt

followed by Zirker vs C.N. ENTERPRISES and CRAIG NOWAK:

http://www.jmls.edu/cyber/cases/flowers3.html

and WebSystems vs Cyberpromotion:

http://www.jmls.edu/cyber/cases/websys1.html

to firmly establish that forging headers is a big no-no.

jc