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Yahoo!, Microsoft Fire Back at HolomaXx; Judge Experienced on Internet Issues

By Ken Magill

Yahoo! And Microsoft have filed motions to dismiss HolomaXx’s lawsuits against them for allegedly blocking the Pennsylvania marketer’s email from reaching Hotmail and Yahoo! Mail users.

The cases are scheduled to go to trial February 25 before Jeremy Fogel, a Silicon Valley judge who is no rookie on Internet issues.

Fogel made international headlines in 2002 when he ruled that Yahoo! did not have to comply with a French order banning Nazi-related content from Web sites on its system.

In 2009, Fogel awarded Facebook $711 million in its lawsuit against the original “Spam King” Sanford Wallace.

In 2008, Fogel awarded Facebook $873 in its lawsuit against Canadian spammer Adam Guerbuez.

Fogel was appointed to the federal bench in the Northern District of California by President Clinton in 1998.

In their dismissal motions, both Microsoft and Yahoo! are relying heavily on the much-derided Communications Decency Act of 1996.

Both also cite the e360 Insight V. Comcast lawsuit as precedent to have their cases dismissed.

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.

HolomaXx is suing Microsoft and Yahoo!, 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 accused the ISPs of intentionally interfering with HolomaXx’s ability to send emails to Microsoft and Yahoo! users who specifically requested to receive the messages.

Both Yahoo! and Microsoft claim that the Communications Decency Act protects them from liability for blocking HolomaXx’s email.

“No provider or user of an interactive computer service shall be held liable on account of – (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be … objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph [(A)],” the Communications Decency Act says.

HolomaXx’s complaints also contend that that its email is Can-Spam compliant and, therefore, should be delivered.

Yahoo! and Microsoft counter that Can Spam compliance is irrelevant and that the Can-Spam Act also protects them from liability.

“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,” the Can Spam Act says.

HolomaXx  also argued that Yahoo! and Microsoft illegally intercepted its messages.

Yahoo! And Microsoft counter that they have every right to access their own servers.

Neither Yahoo!’s nor Microsoft’s lawyers returned calls for comment.

HolomaXx’s original complaints also named Return Path and Cisco IronPort Systems as defendants. Those actions have been dropped.

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