Mark Mumma loses badly

Last November, I wrote about the Mummagraphics case. In short, Mark Mumma threatened to sue Cruise.com for spamming him, and identified them as spammers on his web site. Cruise then counter-sued for defamation. Mumma's petition for summary dismissal of the defamation case was denied (pdf, 17 pages) by the court, which ruled that Cruise had not materially violated the CAN-SPAM law.

As far back as March, 2005, Spam Kings predicted that this would turn into a train wreck.

In February, Direct magazine (a magazine dedicated to direct marketing, including email) interviewed Mumma. The title of the article, "Anti-Spammer Goes Ballistic; Admits His Address Was Registered", did not bode well for Mumma. In short, Mumma admitted that someone had signed him up at Cruise's web site, which means the mail was solicited as far as Cruise knew.

Last week, according to reports, a jury awarded Cruise.com $2.5M.

While Cruise is not entirely without fault in this story — best practices require that you confirm such sign-ups precisely to avoid problems like this — it looks like the court was correct to rule that they had not violated CAN-SPAM as Mumma had alleged. Still, I can't help but be disappointed in the ruling. It seems to me that Mumma genuinely believed that Cruise was in violation of CAN-SPAM, and he thought he had the evidence (in the form of misleading header information) to back up his case. If he genuinely thought Cruise are spammers, is it defamation to say so, even if the court eventually rules that they're not?

See John Levine's blog for an excellent take on the story, and Eric Goldman's analysis of the legal points. See also coverage from Venkay Balasubramani's Spam Notes and Daniel Solove's Concurring Opinions ("The 4th Circuit holding makes the very narrow and ineffective CAN SPAM law even more narrow and ineffective.")