War of Words Between MAPS, Black Ice Software Escalates

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Seeking to "set the record straight" concerning its lawsuit with Black Ice Software, anti-spam group Mail Abuse Prevention System LLC issued a news release last week correcting what it sees as inaccuracies in Black Ice Software's version of events.


Black Ice Software, Amherst, NH, announced May 24 that the Superior Court of Santa Clara County, CA, had dismissed MAPS' complaint that Black Ice violated California's anti-spam statute. Black Ice Software, which makes Internet firewall software, also said the court dismissed MAPS' claims that it violated the Electronic Communications Privacy Act, among other charges.


However, MAPS says Black Ice is celebrating the end of the war when it really won only a small battle. MAPS issued a release dated May 25 titled "MAPS Issues Correction to Black Ice Press Release of 5/25/01," seeking to clarify a lawsuit fraught with charges and countercharges from both sides.


Anne Mitchell, MAPS' director of legal and public affairs, said the May 18 court appearance referenced in Black Ice Software's announcement was a "demurrer hearing," which is held to decide whether pleadings in the case meet the legal requirements to allow the case to proceed. The meeting was not intended to rule on the merits of the case, she said.


"The matters to which the Black Ice press release refers were actually heard by the court and reported on back in October of last year!" Mitchell said. "It is true that at the time, the court disallowed some of our claims, including that under the California Business and Professions Code because, in part, we didn't meet the California definition of an ISP, but at no time has the court dismissed all of our claims of spamming by Black Ice, nor has the court made any factual finding at all with respect to Black Ice's activities."


According to the court's order dated May 18, five of six counts against Black Ice Software were originally dismissed in October, but MAPS was allowed to amend its complaint. Those amended complaints were dismissed May 21 as well, leaving one count remaining against Black Ice.


However, the court upheld one count of unfair business practices and restraint of trade against MAPS.


Mitchell noted that the court's decision is just "business as usual" and that between the time the lawsuit is filed and the time it goes to trial, a number of claims can be disallowed and new ones can be considered by the judge.


"Why [Black Ice is] bringing up procedural matters which occurred more than six months ago, and which had already been made public, is beyond me," Mitchell said.


The charges go back to March 2000, when MAPS said it received several complaints from individuals who claimed that Black Ice Software was spamming them. They complained they received spam after "accidentally visiting" Black Ice Software's Web site. MAPS, Redwood City, CA, subsequently put Black Ice Software on its Realtime Blackhole List, a compilation of IP addresses that allegedly tolerate spammers. Mail administrators use the RBL to block e-mail traffic.


After negotiations between MAPS and Black Ice broke down, the software firm sued MAPS over the RBL listing. MAPS responded with a lawsuit of its own, charging that Black Ice was in violation of California's anti-spam statute.


Last fall, Black Ice Software filed a motion to dismiss MAPS' claim that it was a spammer, said Clark Stone, an attorney with the San Jose, CA, law firm of Skjerven Morrill MacPherson LLP, which represents Black Ice. The court ruled in October in favor of Black Ice, but allowed MAPS to amend its cross-complaint, which it did by adding four more charges. Stone said in January that Black Ice asked the court to rule on the amended complaint. On May 18, he said, it ruled in Black Ice's favor. This led to the May 24 release by Black Ice.


"We asked the court for a judgment on five claims in January," Stone said. "The court ruled in our favor."


He said the software maker filed a cross-complaint against MAPS, charging it with racketeering and antitrust violations, among others. He also said the court ruled in Black Ice's favor last week by not dismissing all but one of the charges contained in that complaint. A hearing is set for June 19, at which time the judge may set a trial date. Stone said he expects the case to come to trial at the end of the year or early next year.


Mitchell said MAPS' case against Black Ice Software is strong and that she expects to win.


"Last week the court heard our requests that [the judge] dismiss some of [Black Ice's] claims on various technicalities," she said. "Our suit against them is alive and well, and we fully expect to prevail."
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