Date: Mon, 1 Dec 1997 22:34:49 -0500 (EST) From: behind brown eyes <benji@haven.boston.ma.us> To: freebsd-chat@FreeBSD.ORG Subject: Re: annoying spammers... Message-ID: <199712020334.WAA00797@flash-gordon.haven.boston.ma.us> In-Reply-To: <Pine.BSF.3.95.971201165137.11442L-100000@dylan.visint.co.uk> from "Stephen Roome" at Dec 1, 97 05:01:33 pm
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According to Stephen Roome:
> If not, and if they refuse your quite reasonable request to stop spamming
> with your email address you can take it up legally with their service
> provider as they are fraudulently pretending to be you (especially if you
> set up an account which accepts all mail to <randomnumber>@html.com).
>
> You've got a case of someone pretending to be you, I'd hope that US law
> doesn't like that, and you can probably put someone either out of business
> or in some fairly deep water. SPAM is one thing, 'framing' (!) someone is
> another bucket of 'something-horrible' altogether.
>
> If their service provider doesn't want to know, how about the US courts, I
> don'y know about you, but if someone started spamming in my name (or on my
> behalf ?) I'd make damn sure they were sorry, even if it did include
> hiring some laywers.
>
I got this off of Phil Agre's Red Rock Eaters mailing list
(rre-request@weber.ucsd.edu). It seemed appropriate to the topic at hand.
benji
P.S. Sorry if that sounds a little weird, I'm running a bit low on sleep right
now.
--- begin included message ---
[From Declan McCullagh's Stop-Censorship mailing list. I remember this
particular spam well. It's one of the spams that first motivated me to
combat the darn stuff. It listed a San Diego street address, and I gave
a fleeting thought to driving over there and chatting with the offender
in person. I thought better of it. I forget now what special offer it
was promoting, but it was lame, I can tell you that. Now this loser is
out $18,910. Justice is done. Keep complaining about those spammers.
Savor the language: "the possibility that Plaintiffs' reputation will
be damaged forever by unauthorized use of a domain name associated
with them in the controversial and hated practice of Internet spamming".
I have taken the liberty of reformatting this message to 70 columns.]
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********
The Judgement
In the District Court of Travis County, Texas, 345th Judicial District
No. 97-06273
TRACY LaQUEY PARKER,
ZILKER INTERNET PARK, INC.,
PATRICK PARKER, PETER RAUCH,
TEXAS INTERNET SERVICE PROVIDERS
ASSOCIATION and EFF-AUSTIN,
Plaintiffs,
vs.
C.N. ENTERPRISES and CRAIG NOWAK,
Defendants.
FINAL JUDGMENT
After notice to all parties, this matter came before the Court on
November 10, 1997 for a final trial on the merits. Based on the
pleadings on file and the evidence presented this day to the Court,
the Court enters the following as its order, findings and rulings:
1. Plaintiff Tracy LaQuey Parker is the owner of the Internet domain
name flowers.com. Ms. Parker, along with her husband Patrick Parker
and Peter Rauch, are business partners who have used the Internet
domain name flowers.com as part of their business enterprise.
2. Plaintiff Zilker Internet Park, Inc., was the administrator of the
Internet domain name flowers.com at all relevant times and was the
Internet service provider for the Parkers. Electronic mail addressed
to any address at flowers.com was routed through Zilker Internet
Park's Internet mail servers.
3. The Plaintiffs had the exclusive right to use the Internet domain
name flowers.com, and did not give permission to any outside persons,
including the Defendants, to make any commercial use of that name.
4. On or about March 31 and April 1, 1997, the Defendants sent
unsolicited mass junk mailings (also known as spam) over the Internet
to many thousands, perhaps millions, of people. In its spam, the
Plaintiffs used a false electronic return addresses to disguise the
junk mailings' origins. The false return addresses used were owned by
Tracy LaQuey Parker of Austin, Texas, and hosted on the computers of
Zilker Internet Park, an Austin Internet service provider.
5. Because many thousands of the Internet addresses were not valid
addresses, thousands upon thousands of copies of junk mail were
returned to Ms. Parker and her business associates via Zilker Internet
Park's computers. This massive, unwanted delivery of the Defendants'
garbage to the Plaintiffs' doorstep inflicted substantial harm,
including substantial service disruptions, lost access to
communications, lost time, lost income and lost opportunities.
6. In addition, the Defendants unauthorized use of the flowers.com
domain name caused actual damages and irreparable harm to Zilker
Internet Park. The Defendants used Zilker Internet Park's electronic
mail handling resources and storage capacity without permission. The
company was forced to handle thousands and thousands of bounced e-mail
messages, which temporarily disabled its mail server.
7. After the filing of this lawsuit, additional identical mass
mailings were made with identical language as the spam inflicted on
the Plaintiffs. The evidence indicates that the Defendants are
continuing to send unsolicited mass mailings over the Internet. At
least some of these messages were addressed to addresses at the same
flowers.com domain name used and owned by the Plaintiffs. From this
evidence, and from the circumstances of the initial mailing using
flowers.com as the return address, it appears from the preponderance
of the evidence that Defendants acted knowingly.
8. In light of the evidence, the Court finds that the Plaintiffs are
entitled to a permanent injunction. The Defendants did not and do not
have the legal right to use flowers.com as a return address for their
mass mailing, and the Defendants unauthorized use of that address
constituted a common law nuisance and trespass. The Court additionally
finds that the Plaintiffs have suffered, and will continue to suffer
if not enjoined, irreparable harm in the form of diminution in value
of Plaintiffs' domain name; the possibility that Plaintiffs'
reputation will be damaged forever by unauthorized use of a domain
name associated with them in the controversial and hated practice of
Internet spamming; and service disruptions. The potential harm to the
Plaintiffs cannot be adequately valued in damages, and therefore the
Plaintiffs have no adequate remedy at law. The balance of interests
favors a permanent injunction, as the Defendants will suffer no harm
in being denied the right to use the flowers.com domain name return
address.
9. The Court further finds that the Plaintiffs, including the
Plaintiffs Texas Internet Service Providers Association and its
members, and EFF-Austin and its members, will suffer irreparable harm
if the Defendants are not prohibited from using other Internet domain
names without permission as the return addresses of their mass
mailings. If the Defendants are not enjoined from using other domain
names without permission, the Defendants will continue to cause the
same injuries that were inflicted upon the Plaintiffs, yet evade any
effective review or remedy for their actions.
10. The Court further finds that Plaintiffs Tracy LaQuey Parker,
Patrick Parker, Peter Rauch and Zilker Internet Park suffered actual
damages from the unauthorized actions of the Plaintiffs, including
lost time, lost income, lost business opportunities and lost use of
their respective computer systems. The Court also finds that it was
necessary for the Plaintiffs to retain the services of attorneys in
order to redress this damages, and that the Plaintiffs are entitled to
an award of their reasonable attorney's fees.
IT IS THERFORE ORDERED that Defendants C.N. Enterprises and Craig
Nowak, jointly and singly, their officers, agents, servants,
employees, and attorneys, and any other persons in active concert or
participation with them who receive actual notice of this order by
personal service or otherwise, be and there hereby are permanently
enjoined from the following:
1. Sending or causing to be sent any Internet electronic mail message
or other electronic communication using the domain name flowers.com as
any portion of the return address of that message, or otherwise using
the domain name flowers.com in any portion of the message header
information.
2. From sending any Internet electronic mail or other electronic
communication incorporating in any electronic return address
information any Internet domain name without the express written
permission of the owner and administrator of that Internet domain
name.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Plaintiffs Tracy
LaQuey Parker, Patrick Parker, Peter Rauch, and Zilker Internet Park,
Inc., have and recover from Defendants C.N. Enterprises and Craig
Nowak, jointly and severally, their actual damages in the amount of
$13,910 and attorney's fees in the amount of $5,000 and that in
addition to this total amount of $18,910 Plaintiffs Tracy LaQuey
Parker, Patrick Parker, Peter Rauch, and Zilker Internet Park, Inc.,
have and recover from C.N. Enterprises and Craig Nowak their costs of
Court and post-judgment interest at the rate of ten percent (10%) per
annum compounded annually from and after the date of November 10,
1997.
All relief not previously granted or specifically granted herein is
denied.
SIGNED this 10th day of November, 1997.
/s/ Suzanne Covington
TRAVIS COUNTY DISTRICT JUDGE
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--- end included message ---
--
Benjamin R. Cline Large Furry Mammal benji@haven.boston.ma.us
"I'm more than ever of the opinion that a decent human existence is
possible today only on the fringes of society." -- Hannah Arendt
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