Subject: Re: [Asrg] Rough consensus on pay to delist

From: Alessandro Vesely <[email-masked]>
Date: Tue, 01 Mar 2011 12:43:28 +0100

On 28/Feb/11 02:26, John Levine wrote:
>> I disagree here and note that legislators may look to this BCP later
>> if they intended to write such legislation.

Agreed, promoting de facto standards seems consistent with common law.

> Having helped some actual legislators write actual legislation, I
> find it utterly implausible that anyone would ever legislate the
> practices of DNSBLs in other than the most general terms.

Is that because of their inability to do otherwise?  (Do they do
better with traffic tickets?)

> Note that in the US they're protected by 47 US 230 which says they can
> do anything they want so long as there's a plausible good faith basis
> for doing so.  Case law confirms that making mistakes does not mean
> you weren't acting in good faith.

BCPs are valid world wide, though.  As unusual as it may be for IETF
documents to inspect business models, I'd cast my vote in favor of
section 2.2.5 just for pioneering such path.

+1, that is.

---

From: "Murray S. Kucherawy" <[email-masked]>
Date: Fri, 4 Mar 2011 08:27:40 -0800

> -----Original Message-----
> From: [email-masked] [mailto:[email-masked]] On Behalf Of John Levine
> Sent: Sunday, February 27, 2011 5:27 PM
> To: [email-masked]
> Subject: Re: [Asrg] Rough consensus on pay to delist
> 

Feel free to point me at some reading materials to answer this question, but:

Isn't that statement contradictory to what happened to MAPS?

---

From: Andrew Barrett <[email-masked]>
Date: Fri, 4 Mar 2011 12:37:05 -0500

> Isn't that statement contradictory to what happened to MAPS?

I don't recall that 47 US 230 was the basis of any action against
MAPS; plaintiffs tended to cite violations of various anti-trust or
anti-competitive statutes. In any event, I don't recall an instance in
which plaintiff ultimately prevailed on the merits. Prevailed, yes; on
the merits, no.

All the best,
Andrew. (ex-MAPSter)

---

From: John Levine <[email-masked]>
Date: 4 Mar 2011 17:40:22 -0000

>Isn't that statement contradictory to what happened to MAPS?

I believe that all the cases were settled or dismissed.  (Not 100%
sure, they're so old that PACER doesn't have documents for most of
them.)  MAPS severely underestimated the costs of discovery and such,
even if one wins a case, and I'm not sure how good their overall legal
strategy was.  As far as I know, they didn't make a 230 defense; Anne
Mitchell could fill in the gaps if there aren't confidentiality
issues.

More recently, in e360insight vs. Comcast, E360 claimed that Comcast
was unfairly blocking his CAN SPAM compliant mail. Comcast crushed
E360 with a 230 defense.

In Zango vs. Kaspersky, Zango objected to Kaspersky's listing them as
spyware. The court granted summary judgement to Kaspersky noting that
it didn't matter whether their listing was correct, so long as it was
made in good faith.

A silly little company called Holomaxx is currently suing Yahoo and
Hotmail in separate suits for blocking their spam, and we all expect
230 wins there, too.

As far as what to read, CAUCE and the Cornell Legal Information
Institute are working on an online spam law archive as part of
the LII's online legal resources.  I expect that will start coming
online in a month or two.

R's,
John