OptInRealBig Denied Injunction in Case Against SpamCop

A judge has denied mass emailer OptInRealBig’s motion for a preliminary injunction against anti-spam service and IronPort subsidiary SpamCop, which it is suing. The injunction would have blocked SpamCop from sending complaints about OptInRealBig to ISPs other than its own and barred it from anonymizing complaints.

Judge Saundra Brown Armstrong of the United States District Court for the Northern District of California issued the order denying the preliminary injunction on Friday.

The judge denied OptIn’s request because she said SpamCop, which sends copies of complaints about spam to ISPs, did not alter the content of the messages it sent and hence is immune from liability under the Communications Decency Act (CDA). For this reason alone, Armstrong said, she was denying the motion for a preliminary injunction, though she added other reasons for “thoroughness.”

Under the CDA, the judge said, if SpamCop had altered the content, it would be liable. However, Armstrong found that SpamCop had not done so.

“I think this is an important ruling because it furthers Congress’s intent in enacting the Communications Decency Act and promoting the exchange of ideas and information over the Internet,” said Darryl Woo of San Francisco’s Fenwick & West, one of IronPort’s attorneys in the case. “At the same time, it sends a message to spammers that they should not attack their critics by bringing meritless litigation.”

Steven Richter of Goodman & Richter, attorney for OptIn, said, “We’re disappointed in the court’s ruling regarding the denial of the preliminary injunction, but at the same time the judge issued her denial we filed an amended complaint. We believe the complaint has brought to the court’s attention more facts for the court to consider as the case moves forward.”

In her ruling on the preliminary injunction, Armstrong set forth reasons why she would deny the motion even if SpamCop were not immune under the CDA. She said two of SpamCop’s four requests were too broad and vague for a preliminary injunction.

As to the other two, Armstrong said OptIn failed to prove trade libel, because SpamCop did not couch its reports as fact. Also, OptIn didn’t prove that SpamCop sent the same report several times to the same ISP, she said. Additionally, OptIn did not prove SpamCop acted with malice. The judge said SpamCop failed to prove interference with contractual relations because it did not demonstrate that sending the reports to ISPs is wrongful by some legal measure.

OptInRealBig filed suit in April against SpamCop and parent IronPort, alleging that SpamCop interfered with OptInRealBig’s contracts and business relationships, defamed the company and damaged potential future earnings. The complaint also sought a temporary restraining order, a preliminary injunction and a permanent injunction blocking SpamCop from making slanderous or libelous statements about it and a minimum of $150,000 in damages.

As part of its spam-reporting services, SpamCop notifies ISPs’ abuse desks of email that has been submitted by users as spam. Every ISP tracked in the reported spam’s headers is notified, with the email addresses of complaining users withheld. OptInRealBig’s TRO would have restrained SpamCop from withholding the email addresses of users who complained about OptIn’s emails and from forwarding complaints about OptIn to any ISPs except OptInRealBig’s own ISP.

SpamCop, formerly a one-man operation, was acquired by IronPort Systems in November 2003, making it a much more attractive lawsuit target.

Scott Richter, OptInRealBig’s president, is himself the subject of an anti-spam lawsuitjointly filed in December by New York’s Attorney General and Microsoft. According to attorney Steven Richter, who is also handling this case, settlement papers in the case have been signed and are awaiting approval by the judge.

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