*Spam Lawsuit Finds MAPS in Plaintiff Role

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While Mail Abuse Prevention System LLC was defending itself in two high-profile legal challenges over the summer, the anti-spam group kept the lid on a third lawsuit that began in March and features MAPS as the plaintiff rather than the defendant.


This suit, which pits MAPS, Redwood City, CA, against Black Ice Software, Amherst, NH, a software manufacturer, came to light recently after a California judge ruled against MAPS in a couple of pretrial motions and tabled others for later proceedings.


Judge Socrates Manoukian denied MAPS' motion to label Black Ice's countersuit a strategic lawsuit against public participation. According to California civil law, a SLAPP suit is a lawsuit that seeks to prevent an organization from practicing its First Amendment rights. The court also denied MAPS' motion to strike Black Ice's punitive damages claim.


Another preliminary motion, in which both sides sought to dismiss the respective charges, was overruled, while a fourth motion, which said that MAPS lacked the validity to assert a California Business and Professions code specifically related to unsolicited commercial e-mail, was temporarily granted. The court also granted MAPS a couple of weeks to collect additional information and file an amended complaint.


Despite some of the pretrial rulings seemingly going against them, Anne Mitchell, MAPS' director of legal and public affairs, argued that it would be wrong to think that MAPS has suffered an early defeat.


"This was not an adjudication of the issues," said Mitchell. "It was simply the court saying 'go forward' to some issues, 'do not pass go' to others, and 'maybe' to the rest."


According to the lawyers for Black Ice, the rulings clear the case for the full-blown discovery phase and trial.


"Now the case can essentially move forward," said Clark Stone, an attorney with Skjerven Morrill, San Jose, CA, Black Ice's legal firm. "And we think, obviously, that factually we have a good case or we wouldn't be moving forward."


Stone said the parties will return to court in November for a scheduling order and that the case wouldn't get underway until at least a few months into 2001, about a year after the original complaint was filed.


The MAPS/Black Ice scrape began in March, when MAPS said it received several complaints from people who said they visited Black Ice's site in error, confusing the faxing software firm with the manufacturers of a fire wall software product called Black Ice Defender. As a result of the accidental visit, according to MAPS, Black Ice captured e-mail addresses and began spamming those names.


"This was confirmed," Mitchell said, "and Black Ice refused to verify the [e-mail] list."


MAPS then placed Black Ice on its Realtime Blackhole List, a compilation of alleged spammers that Internet service providers and mail administrators can use as a guideline to block e-mail traffic.


After subsequent negotiations between MAPS and Black Ice broke down, the software firm threatened to sue MAPS over the RBL listing. In an unusual move, MAPS responded to that threat with a lawsuit of its own, charging that Black Ice is in violation of a California code against spam and seeking declaratory relief.


Mitchell said MAPS is often threatened with legal action when it lists a firm, but that this case was different.


"It is true that we often get threats, however, usually they are so much puffery," she explained. "In Black Ice's case, they refused to work on the problem to correct it and instead sent a credible legal threat to our litigation counsel."


Black Ice's attorney suggested that MAPS had a different motive.


"I guess it was somewhat of a pre-emptive strike," Stone said. Black Ice officials would not comment and referred all questions to its legal counsel.


In MAPS' previous two legal entanglements, yesmail.com and Harris Interactive sued the anti-spam organization for a host of reasons, ranging from unfair business practices to punitive relief. In both instances, the charges were dropped -- yesmail and MAPS reached an out-of-court settlement, and Harris reached agreements with a few big ISPs and pulled out of the case.


MAPS' March lawsuit, predictably, led to a Black Ice countersuit, which was filed in July and accused the group of interfering with its contractual relationships, restraint of trade and more. It also requested punitive damages for a "substantial loss of Black Ice's Internet and e-mail services," according to court papers. The cross-complaint, in turn, led to MAPS' shouts of a SLAPP suit.


"Our suit is founded on our First Amendment right to publish our opinion as to sites which do not follow our acceptable mailing list management practices," Mitchell said.


Black Ice has since been removed from the RBL and is now on probationary status as the case proceeds.
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