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Ken Magill

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Yes, They Spam; But we Should be Rooting for Kraft Anyway


By Ken Magill

Okay, so let’s get something straight right up front. I wouldn’t in a million years attempt to defend Kraft Foods’ Gevalia Coffee’s email marketing practices.

They—or more accurately, their affiliates—have been spamming for more than a decade. They give direct email marketers a bad name.

That said, a court ruling went in Kraft’s favor last week that should give us all a reason to breathe a sigh of relief, for now at least.

A jury in a federal court in Maryland has reportedly ruled that anti-spam plaintiff Paul Wagner is not a bona fide Internet service provider—hopefully a big step toward getting his case tossed in the trash bin where it belongs.

However, the case apparently isn’t over.

U.S. District Judge Peter J. Messitte asked lawyers for both sides to make arguments about whether or not Maryland law requires Wagner’s business, Beyond Systems, to be a bona fide ISP in order to sue for damages.

Make no mistake, Wagner is a time-and-resource-sucking anti-spam litigation mill. Even his own lawyer conceded that Wagner has spent much of the last few years focused on litigation instead of his computer business—a business he reportedly runs out of mommy and daddy’s house, by the way.

Wagner has also reportedly testified that he has had just two dozen clients in the last decade, including his housemates and his father.

To be fair, Wagner’s complaint does include evidence that spam sent on behalf of Gevalia contained information and techniques designed to disguise its source.

However, the complaint also included the patently ridiculous claim that the subject line “Free Stainless Steel Coffee Maker & 2 Travel Mugs” was deceptive because the deal requires a purchase.

What is this guy, 12?

Actually he’s reportedly 48. He’s just got the maturity of a 12 year old.

And that’s the problem with anti-spam lawsuits filed by individuals rather than ISPs. They’re not filed to protect anyone. They’re not filed to stop spam.

Only an idiot would think litigation by individuals against well-known brands would put even the tiniest dent in the volume of spam sent over the Internet.

Individual anti-spam lawsuits are filed out of childish anger. And childish anger should not be allowed to tie up our courts when it can be avoided.

Spam isn’t an issue for consumers anymore. Anyone with a Gmail, Yahoo! or Hotmail account can attest to that.

Spam is a problem for ISPs, however. It sucks up their technical and human resources, and storage space. As a result, ISPs should and do have the right to sue spammers.

But by the nature of their business, if an ISP brings a lawsuit, it’ll be against an entity that is demonstrably damaging the ISP’s business, not one that simply pissed the ISP’s executives off.

Here’s to hoping it is ruled that Wagner’s business must be a bona fide ISP in order for his suit to continue.

Because if it isn’t, we can expect a flood of suits filed out of childish anger to follow.


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