UPDATE: Harris Interactive Denied Restraining Order Against MAPS
But days earlier, the Internet polling firm scored a major victory when it discovered that America Online, one of the defendants in the case, was no longer blocking Harris from sending e-mail to AOL subscribers. Once the AOL block was lifted, which Harris said it first noticed Aug. 4, the company dropped all claims against AOL, Dulles, VA.
Harris is, however, pressing ahead with it charges against MAPS and a handful of ISPs, including Qwest, Microsoft Hotmail and Juno Online Services despite this week's legal setback.
"We're really pushing and we will continue to push to collect compensatory damages against these people who interfere with our business," said Dan Hucko, vice president and director of marketing and communications at Harris Interactive, Rochester, NY. "And we will continue to push this issue of who really controls the Net."
For MAPS, the trial appears to be shaping up as the platform it has always craved to legally establish its practice of placing companies on its Realtime Blackhole List, a compilation of alleged spammers.
"This is an important first round victory for us," said MAPS spokeswoman Kelly Thompson. "The judge realized that Harris' claim of irreparable harm to their business from being placed in the RBL wasn't as strong as they had claimed."
Harris originally said the RBL-inspired blocks prevented it from reaching 2.7 million of Harris' 6.6 million panel members, including 600,000 active participants in its Internet-conducted polls. Hucko said the court decided that since Harris was able to communicate with 60 percent of its members -- and then 90 percent after the AOL block was lifted -- a temporary restraining order was unnecessary.
Both companies continue to vehemently spar over Harris' RBL listing. Peter Popovich, MAPS' director of online operations, said Harris has delivered spam and earned its placement.
"Harris was, and is, in the RBL because we have received ongoing complaints from people who continue to receive unwanted e-mail from Harris -- e-mail for which they had never signed up for in the first place," Popovich said. "All Harris had to do to get out of the RBL was to commit to expunging those addresses from their mailing lists, or not to use those tainted lists."
Harris insists that it does not send or condone spam and that the people it e-mails have asked the company to do so. AOL's decision to unblock Harris, according to Gordon S. Black, Harris' chairman and CEO, demonstrates that the Internet giant shares its concerns about "fair and consistent" Internet access.
"[AOL's actions] mark a major first step in our effort to ensure full protection against unfair and undemocratic practices that can emerge as a result of self-regulation by organizations such as MAPS," said Black.
Though Harris reached no formal agreement with AOL, it jumped at the chance to end its suit against the Internet firm. Despite the passions this case is raising on both sides of the spam and e-marketing spectrum -- and the possibility of a precedent-setting ruling -- Harris is first and foremost trying to get back to business.
"The main objective of the lawsuit was to get these blockages lifted," Hucko explained. When it became clear that its e-mails were reaching AOL members, the mission, with respect to AOL, was accomplished, he said.
There was some confusion, however, over the way in which the block was lifted. Initially, Harris issued a statement saying AOL agreed to change its ISP provider from Above.net, San Jose, CA, a firm that subscribes to MAPS' RBL, to an unidentified ISP that was not affiliated with MAPS. Within hours, Harris issued a second statement making clear that there was no formal agreement between the two companies and that any moves undertaken by AOL were not connected to the lawsuit.
Asked to further explain the matter, Hucko would only confirm that Above.net was blocking Harris' e-mails and that all Harris e-mails to AOL are now "flowing and none of it is going through Above.net."
Both AOL and Above.net did not respond to requests for an interview. What is known about Above.net is that Paul Vixie, MAPS founder and managing member, has direct ties to it. Vixie serves as senior vice president of Internet services for Above.net's parent company, Internet infrastructure firm Metromedia Fiber Networks.
Back in Rochester, NY, the U.S. District Court for the Western District of New York has asked the parties to prepare for the trial's discovery phase. It is during this phase that the firms will likely get the chance to state their policies and defend their methods of identifying possible spam and refusing to deliver certain e-mails.