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A HolomaXx Win? Er, Not Seeing it

By Ken Magill

While it’s never certain how a judge will rule, it’s difficult to envision a scenario under which HolomaXx Technologies will win the lawsuit it filed in late October against Yahoo, Microsoft and others over blocked email.

For one thing, history certainly is not on the e-commerce and email service provider’s side.

HolomaXx—a company that went from unknown in email marketing circles to the talk of them last week—is suing Microsoft, Yahoo, Return Path and Cisco Ironport Systems, claiming that mass email campaigns it sends on behalf of clients have been wrongly blocked from reaching recipients.

In two separate complaints filed on Oct. 29, Pennsylvania-based HolomaXx accuses the four firms of intentionally interfering with HolomaXx’s ability to send emails to Microsoft and Yahoo users who specifically requested to receive the messages.

HolomaXx isn’t the first company to sue for blocked email.

Illinois entrepreneur Dave Linhardt, president of now-defunct e360 Insight, sued Comcast in 2008 accusing the cable broadband provider of unfairly blocking his company’s email messages.

Judge James B. Zagel in U.S. District Court in Northern Illinois ruled that Comcast was not liable for mistakenly blocking even permission-based e-mail when it’s part of a good-faith effort to protect its subscribers from spam. Zagel tossed Linhardt’s suit.

Of course, HolomaXx could argue that Yahoo and Microsoft are purposefully blocking HolomaXx’s messages so Zagel’s ruling doesn’t apply. But it’s a precedent HolomaXx will likely have to overcome nevertheless.

Then there are the severely flawed arguments.

HolomaXx claims its low spam-complaint rates are evidence it’s not a spammer. Laura Atkins, principal of email deliverability consultancy Word to the Wise, pointed out on her blog last week that low spam-complaint rates are evidence of nothing other than low complaint rates.

A mailer whose messages are being shunted off into people’s spam folders will have low complaint rates because people don’t report messages in their spam folders as spam.

And in another case of flawed logic, both of HolomaXx’s complaints go into great detail explaining how its program is compliant with the Can-Spam Act.

They then argue that Yahoo and Microsoft rely on spam detection services and algorithms that “identify spam based on certain mailing characteristics, without reference to whether the email in question actually violates the Can-Spam Act.”

The implication is that since HolomaXx’s messages are Can-Spam compliant, they should by law be delivered.

And the implication would be dead wrong. As Internet expert John Levine pointed out on his blog last week, Can Spam specifically gives Internet service providers the ability to filter and block email as they see fit.

Specifically, the act says: “Nothing in this Act shall be construed to have any effect on the lawfulness or unlawfulness, under any other provision of law, of the adoption, implementation, or enforcement by a provider of Internet access service of a policy of declining to transmit, route, relay, handle, or store certain types of electronic mail messages.”

What is more, a mailing can be completely Can Spam compliant and loaded with unsolicited messages. ISPs have every right to protect their systems from mass unsolicited email campaigns.

HolomaXx’s Microsoft complaint also decries the ISP’s use of dead addresses as spam traps.

“Specifically, Microsoft monitors email address which it believes were abandoned by individual users, and then (without any logical basis) decrees that any emails now being received by those accounts must be spam—even if the user requested email from the sender while actively using the account,” the complaint says.

Without any logical basis? How about no activity for a year and a half? That’s the length of time a Microsoft representative told me the firm uses to determine when an email address has been abandoned.

When a mailer hits addresses that have been inactive for a long period of time, it indicates they’re not cleaning dead addresses from their files.

That HolomaXx is complaining about spam traps indicates the firm’s clients’ list hygiene may be less than stellar.

Rather than spending money on lawyers, maybe HolomaXx should be spending a little more time getting its clients to clean up their files.

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