MAPS, Yesmail Back Down on Lawsuit

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It was like a schoolyard fight that had been brewing all year, and then just as everyone gathered by the flagpole, the would-be combatants began singing Barney the dinosaur's theme song, "I Love You, You Love Me."


E-mail services provider yesmail.com and anti-spam group Mail Abuse Prevention System LLC issued a statement this week saying they had signed a "memorandum of understanding" that lifted a temporary restraining order against MAPS. It also ensured that yesmail would not be placed on MAPS' feared Realtime Blackhole List, a list of Internet protocol addresses that MAPS believes to be friendly or neutral to spam. Getting placed on the list results in being unable to deliver e-mail through a reported 20,000 mail administrators who subscribe to the service, resulting in a reported 40 percent to 50 percent of a mailer's e-mail bouncing back.


The organizations are again negotiating to work out their differences.


Some with a vested interest in e-mail marketing saw the agreement as a missed opportunity to settle the spam issue.


"I would have preferred to have [the suit] go through and have an official, legal resolution than just have a resolution between two parties," said Dave Florence, CEO of Direct Media, Greenwich, CT, a traditional direct mail list company also involved in e-mail. "We'd like to know exactly what we are and aren't allowed to do. While I think [MAPS] is doing a lot of good, I think they're taking a lot upon themselves to make themselves judge and jury, particularly when there are no written laws."


Others saw the truce as possibly a last chance for all sides to collaborate on standards for commercial e-mail without government intervention.


"I'm not in agreement that the acrimonious approach is the right one," said Courtney Nichols, president of consumer messaging services at e-mail outsourcing firm Mail.com, New York. "If they'd have decided to move forward with the lawsuit, all of us would have had to choose sides. Either you side with yesmail and you've got MAPS putting you on the RBL, or you side with MAPS and you adjust your business to fit their requirements."


Mail.com manages a list of more than 8 million e-mail addresses. It was put on the RBL briefly several years ago.


The fight between MAPS, Redwood City, CA, and yesmail, Chicago, began over a seemingly picayune difference in the definition of permission-based e-mail marketing. MAPS is a proponent of so-called double opt-in or closed loop e-mail address gathering -- requiring Internet users to confirm their requests to receive e-mail offers by responding to a confirmation e-mail.


Yesmail employs a practice called unconfirmed opt in, whereby the recipient must respond to the confirmation e-mail not to receive future e-mails. Apparently, a MAPS executive was placed on a yesmail list without his knowledge. When he received yesmail's confirmation message, he decided he was being spammed.


As a result, according to yesmail, MAPS put yesmail on the RBL and demanded that yesmail go back to double opt in for its database of more than 12 million e-mail names, an undertaking that would require coordination with 120 companies.


For months, there have been rumblings that MAPS has become increasingly difficult to deal with. It has become easier to get on the list and harder to get off, according to sources. Also, some e-mail service providers were considering banding together to fight MAPS as a group, sources said.


While most in the e-mail world have dealt with MAPS at one time or another out of the public eye, yesmail was the first to go to court.


On July 13, U.S. District Court in northern Illinois issued a temporary restraining order preventing MAPS from placing yesmail on the RBL.


Things reportedly began to cool off after a July 21 conference call held by e-mail list development firm NetCreations. Among those taking part were reportedly yesmail CEO David Tolmie and Nick Nicholas, director of policy and communications at MAPS.


"I'm hopeful that this [cease-fire] is a step in the right direction," said Rosalind Resnick, president of NetCreations, New York, and a proponent of double opt in. "I do think that MAPS has too much power, and I think that the only way to establish best practices is for representatives of all sides to get together. What if MAPS won? It would have given them more power than they already have, and it would have set a bad precedent that could have been very harmful to the e-mail marketing industry."


Also seen as crucial from a competitive standpoint is that every e-mail service provider has the same boundaries.


"MAPS is in the driver's seat and is clearly trying to make all vendors go to what they consider best practices or double opt in," said Cindy Brown, vice president of engineering at 24/7 Exactis, Denver, the e-mail service bureau of ad services giant 24/7 Media. "We want to support [double opt in], but it has to be across the industry," Brown said.


Under an agreement with MAPS, 24/7 Exactis starting in early fall will require its 140 clients to double opt in new e-mail subscribers. The 42 million current addresses of the firm's clients, however, are grandfathered. The move to double opt in is based on the belief that the industry is moving in that direction.


"There would be nothing worse than for us to make someone conform to [double opt in] only to see them say 'no' and go to a competitor," said James Green, president of technology solutions, 24/7 Media, New York.


Some e-mailers declined to comment on the record about the yesmail lawsuit for fear of backlash. Their fear stems from recent reports that some Internet service providers began blocking transmissions from yesmail in support of MAPS' decision to put yesmail on the RBL.


Others, however, see last week's developments as evidence to the contrary.


"They [MAPS] are not the enemy," said Ben Isaacson, executive director at the Association for Interactive Media, the Direct Marketing Association's online arm. "Obviously, they want to work with marketers. This is not an issue that's going to go away with one potential lawsuit or another. It's an issue that the industry needs to discuss."


Other than their joint statement, neither MAPS nor yesmail would talk about the cease-fire.


"As discussions with MAPS have proceeded, we are both finding that the goals for yesmail.com and MAPS are very much in alignment," yesmail's Tolmie said in a statement. "We are looking forward to being able to announce an agreement which will represent a very strong statement from both of us regarding policies and practices for consumer permission and protection in the e-mail marketing industry."


Paul Vixie, managing member at MAPS, said in a statement, "Once we started peeling back the covers on this, it turned out that yesmail.com's stated business interests and the policies they were willing to put in place made them ineligible for listing on the Realtime Blackhole List. We think that the details we'll set forth in the final agreement in this case will outline a model for all companies in the electronic marketing field."
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