E-mail marketer yesmail and anti-spam advocate Mail Abuse Prevention System were scheduled to go appear in U.S. District Court in northern
Illinois today to resume the legal skirmish that resulted in a temporary
restraining order preventing MAPS from placing yesmail on its feared
Realtime Blackhole List.
A MAPS motion to vacate the restraining order was
not approved, a spokesman for yesmail said after the hearing. Both sides say they welcome the opportunity to establish a legalprecedent regarding MAPS' so-called “blacklisting” of companies accused of sending unsolicited commercial e-mail.
“We're going to defend our business,” said Anthony Priore, senior vice president of marketing at yesmail.com, Chicago. “This is a really critical issue for us. We didn't want to get this thing into this kind of situation, but we believe in what we're doing.”
MAPS issued a statement confirming the temporary restraining order but would not comment further. On its Web site, however, the organization said it hopes for a precedent-setting legal case.
“Ultimately, the board of MAPS believes that new laws will need to be created to address the problem of Internet mail abuse,” MAPS said on its Web site. One way to achieve that is through legislation, while another is with case law, the organization said. “It is our hope that MAPS can help bring about a … landmark case and carry it all the way to the Supreme Court, where federal case law can result,” the site said.
At stake for yesmail is the right to freely determine its own policies for delivering e-mail marketing messages to members of yesmail lists, without threat of being bounced off or denied access to networks maintained by the 20,000 system administrators who subscribe to the RBL.
Priore said yesmail talked with MAPS for several months in hopes of satisfying MAPS' stringent request that all e-mail marketing firms adopt a double opt-in standard. Double opt-in permission requires users to actively opt in for e-mail communications, then confirm via e-mail response that the opt-in was legitimate.
Those talks broke down, according to Priore, when MAPS demanded that the e-mail marketer change its policies instantly or face banishment to the RBL.
“When it started to escalate to a potential revenue problem, then we said, 'Enough is enough. These are bullying tactics now,' ” he said. “Double opt-in is an accepted and good practice, but a renegade association should not be dictating the policies and procedures of all the companies that are in the e-mail marketing space.”
To MAPS, the case is about defending its ability — and the ability of system administrators who subscribe to the RBL — to enforce their own restrictions on alleged spammers.
MAPS is only able to deny access to the 40 or 50 computers in its Redwood City, CA, offices, said Rodney Joffe, president of Centergate Research Group and a fellow anti-spam advocate. It has no authority over companies or people who subscribe to the RBL.
For that reason, he predicts it will be tough for yesmail — which has petitioned the court for a permanent restraining order against MAPS, in addition to compensatory and punitive damages and legal fees — to win a legal case against MAPS.
“Most companies and people who have had their attorneys look at MAPS have walked away and said, 'There's no way to actually fight it because it's not a restraint of trade,' ” Joffe said. “It's nothing other than a list they maintain [that is] based on the way they operate, saying we won't allow them into our network.”
On the other side, watching the proceedings with intense, partisan interest is an e-mail marketing industry that is still trying to navigate its way through a developing marketing space. Feelings about MAPS range from resentment of the influence that MAPS wields; to regret that the group has worked against marketers rather than with them to craft acceptable and practical standards of permission; to glee that a large, well-funded e-marketer such as yesmail has taken MAPS on.
For those who agree with yesmail's lawsuit, the case came not a minute too soon.
“I am glad to see somebody stand up and fight those guys,” said Drew May, a business unit leader at Acxiom Corp.'s eProducts division. “They have the ability to shut a business down without any due process.”
Other marketers agree with MAPS in principle, if not in practice. Double opt-in may be the only standard for the future, but it is unrealistic to demand that companies meet it today, said John Lawlor, president of EmailChannel, Boca Raton, FL.
“The basis of what MAPS is doing is fine,” said Lawlor, whose Internet marketing firm has been on the RBL for more than five months. “But I think what MAPS has done is cross over the line and gone after anybody that they feel doesn't 100 percent agree with them. They're on a holy mission now.”
Deb Goldstein, president of IDG List Services, a practitioner of opt-out e-mail marketing, said MAPS is too heavily focused on one piece of the e-mail process — opt-in.
“You could have all the permission in the world, but if you never give someone an unsubscribe at the end, what good is that?” Goldstein said. “It's not just about permission.”