Amicus Brief filed in Spamhaus case

I last wrote about the E360 vs Spamhaus case last October. In a nutshell, spammer Dave Linhardt, CEO of E360 sued Spamhaus for listing him as a spammer. Spamhaus, based in England, declined to submit itself to the jurisdiction of a U.S. court, and Linhardt was awarded over $11M in a default judgement. Spamhaus is now appealing this judgement and arguing jurisdiction.

As part of this appeal process, a "friend of the court" brief (pdf, 58 pages) was authored by Matthew Prince (Adjunct Professor at John Marshall Law School and founder of Unspam) and co-signed by dozens of other interested parties. The list of signatories itself is fascinating, being composed of both anti-spam organizations such as CAUCE, and email marketers such as Datran.

In short, the brief argues that: There is no jurisdiction over Spamhaus in the United States. The judge erred in giving a default judgement before even settling the issue of jurisdiction. The internet would be badly harmed if a precedent like this were set. The decision to block emails based on Spamhaus' data is made by individual ISPs and not by Spamhaus — thus holding Spamhaus liable for the decisions made by others based on the information Spamhaus provides would be akin to holding movie reviewers liable for a film's failure. The CAN-SPAM act specifically grants immunity to ISPs for their efforts to block spam. The OptinRealBig case extended CDA protections in such cases to services such as Spamhaus. The permanent injunction issued by the court would create a legal standard and process that is unworkable and would thwart any attempts by ISPs to block spam.

More on this story in Direct Magazine article Well-Known E-mailers Back Spamhaus in Amicus Brief.

Oh, one interesting tidbit of trivia that's come to my attention in this case: The judge who issued the default judgement in this case is himself a user of Spamhaus — he just doesn't realize it.

... in fact, the email addresses of all United States federal court judges and employees are currently protected from undesirable "spam" email by a filtering system utilizing Spamhaus' SBL list.