The general response from the marketing side of things appeared to be that ISPs need to stop actually filtering marketing email. That would resolve the problems from the marketers perspective. I don’t necessarily think that will help. I believe if marketers had unfettered access to the inbox, most inboxes would be totally un-useable.

My thinking triggered other folks to consider delivery and marketing and what drives both. George Bilbrey, from Return Path, posted an article in Mediapost looking at why good delivery is an important part of a good marketing strategy.

George points out many marketers really do act as if delivery is separate and detrimental to good marketing.

I hear this with my clients and I hear this on discussion lists.  They think that the practices that drive high inbox placement rates are antithetical to return on their email marketing investment.

Exactly. I hear a lot of contempt for delivery consultants and good delivery practices from a lot of marketers. They claim our methods and our recommendations come from not understanding marketing. They flat out tell me that “we’re” manufacturing delivery problems by pointing out mail that users don’t want has poor delivery.

There are thousands of companies that have never heard of Return Path, or Word to the Wise, who don’t understand why their perfectly crafted marketing isn’t getting to the inbox. It’s because they don’t understand email and delivery. They want to do what works elsewhere, and those models don’t always map onto email.

And that’s why companies like Word to the Wise and Return Path exist.

And, of course, Holomaxx filed a motion in opposition in both the Microsoft case and the Yahoo case. Nothing terribly interesting here, about what you’d expect to read.

On March 11 the judge ruled on both motions to dismiss and in both cases ruled that the case was dismissed.  He did, however, give leave for the complaints to be amended in the future.

As I expected the Judge agreed that MSFT and Yahoo have protection under the CDA. First, the court made it clear that providers are allowed wide leeway in determining what is objectionable to their customers.

No court has articulated specific, objective criteria to be used in assessing whether a provider’s subjective determination of what is “objectionable” is protected by §230(c)(2). In e360 Insight, LLC v. Comcast Corp., 546 F.Supp.2d 605, 608 (N.D. Ill. 2008), the court concluded that virtually total deference to provider’s subjective determination is appropriate.

(emphasis added)

Then the court points out that to overcome the “good faith” provision of the CDA that Holomaxx must show how Microsoft is acting in bad faith. The court found no examples of that in Holomaxx’s pleadings. The court also determined that it was counter to the CDA for ISPs to explain exactly how to get around filters.

Holomaxx alleges no facts in support of its conclusory claim that Microsoft’s filtering program is faulty, nor does it identify an objective industry standard that Microsoft fails to meet. While it suggests that Microsoft is “[p]ossibly seeking to cut costs in its service to its free email service” and alleges based on information and belief that Microsoft profits from requiring senders to join “whitelists,” (Compl. ¶¶ 20-22), it offers no factual support for these allegations. Nor does Holomaxx cite any legal authority for its claim that Microsoft has a duty to discuss in detail its reasons for blocking Holomaxx’s communications or to provide a remedy for such blocking. Indeed, imposing such a duty would be inconsistent with the intent of Congress to “remove disincentives for the development and utilization of blocking and filtering technologies.” 47 U.S.C. § 230 (b)(4).

The court concludes:

The first element of Microsoft’s affirmative defense under the CDA is not in dispute. While it is conceivable that Holomaxx could raise an issue of fact as to the second and third elements, it must provide significantly greater factual detail in order to do so. Accordingly, Holomaxx’s third, fourth, fifth, and sixth claims predicated on Microsoft’s filtering and blocking activities will be dismissed, with leave to amend.

If you want to know what the judge said in the Yahoo ruling, just replace all above instances of Microsoft with Yahoo.

The above counts focused on the filtering claims (3, 4, 5 and 6). Claim 1 was that the ISPs were violating the Federal wiretapping law and Claim 2 was that they were violating the stored communications act. In regards to both those counts the court ruled that there was no evidence presented for them to make a decision either way.

One minor side note that I did find a bit interesting was both Yahoo and Microsoft mentioned their user agreements in their motions to dismiss. Holomaxx objected to this reference independent of their objection to the motion to dismiss. Their argument was that mentioning the user agreements (and even including documentation and affidavits) was inappropriate and shouldn’t be included in the case. The judge ruled in Holomaxx’s favor on this point.

There was one extra claim count in the Microsoft complaint “False Light”. I think this was a count really directed at Return Path (originally a co-defendant of Microsoft). The judge ruled there was no false light and that claim was dismissed without leave to amend.

So, there you go. The cases are dismissed. I don’t know if Holomaxx will take this dismissal and move on or if they’ll amend the complaint and try again. Given how fast they dropped Ironport/Cisco and Return Path from the case, it may be that they’ll gratefully take this dismissal and move on.

Full text of the Yahoo Ruling

Full text of the Microsoft ruling

Return Path offers Return Path Certified. A number of large ISPs accept Return Path certification, including Yahoo, Hotmail and Comcast. IP addresses that are certified are not guaranteed to reach the inbox, but there are some delivery benefits to being certified. For instance, Hotmail lifts hourly delivery limits for certified IPs. Return Path closely monitors certified IPs and will remove certification from IP addresses that do not meet their standards. They are offering an expedited application process and managed transition to former Goodmail customers.

SuretyMail offers accreditation to senders. SpamAssassin does use SuretyMail as a factor in their scores. Mail from accredited IPs receives lower SpamAssassin scores. I don’t have much direct experience with SuretyMail, so I can’t talk too knowledgeably about their processes. A former customer has written, however, about their experience with SuretyMail. They are offering a half off application fee for former Goodmail customers.

The other option for senders is to find a good delivery consultant. As I said yesterday, a large number of senders are not certified or accredited and experience 95+% inbox delivery rates. Many of my customers, for instance, see 100% inbox without certification. There are certain market segments where certification makes a difference. But for senders who are sending mail that users actually want to receive and are engaged with, certification isn’t always necessary.

In the Yahoo case, there is a case management meeting on January 14th.

In the Microsoft case, a response the complaint is due by December 17th.

I’m not quite sure what happened to prompt this change, but I think it makes it even more unlikely that the case will be successful. The courts have repeatedly ruled in favor of ISPs in these kinds of cases.

EDIT: I’d link to Ken’s article, but I appear to have closed that tab and I can’t find it on his website. I’ll add it as soon as I do.

EDIT: Ken’s announcement

Valeria helping

Return Path has turned our recent series of blog posts about SORBS into a handy list for what people SHOULD do when they’re intending to run a blocklist. More regular posting will return next week.

This is an organized, deliberate, and destructive attack clearly intent on gaining access to industry-grade email deployment systems. Further, the potential consequences should ESP client mailing lists be compromised at this time of the year is unimaginable.

If you are not an ESP, but do send large amounts of email you may also be a target. My copy of the phish came from a tagged address given to one of my non-ESP clients.

1. Sender Score – http://senderscore.org/. Provided by Return Path. They collect data from some ISPs and blocklists. Using a proprietary formula, they calculate a sender score running from 1 – 100 for each IP address sending mail to their network. Higher scores means a better reputation. Can be inaccurate for IPs sending very low volumes of email. Some ISPs use Sender Score to feed into their delivery decision engines.
2. Sender Base – http://senderbase.org/. Provided by Ironport / Cisco. They collect publicly available data as well as data from their userbase. Reputation is reported as “good” “poor” or “neutral.” Senderbase scores feed into some ISP delivery decision engines.
3. AOL reputation – http://postmaster.aol.com/cgi-bin/plugh/check_ip.pl. Reports the reputation of IPs as determined by AOL. Uses a scale of “good” “poor” or “neutral”.
4. RoadRunner blocks – http://security.rr.com/amIBlockedByRR. Reports if a particular IP address is currently being blocked from sending mail to Road Runner.
5. Spamhaus blocks – http://www.spamhaus.org/. Reports if an IP is currently listed on any of the Spamhaus lists.
6. Sendmail Reputation – http://sendmail.com/sm/resources/tools/ip_reputation/. Reports reputation of an IP address as measured by Sendmail.
7. Trusted Source – http://www.trustedsource.org/. Provided by McAfee.
8. Commtouch – http://www.commtouch.com/check-ip-reputation/. Provided by Commtouch.
9. Barracuda Central – http://www.barracudacentral.org/lookups/. Provided by Barracuda, shows what IP addresses or domain names are currently blocked.
10. SNDS – http://postmaster.live.com/snds/. Provided by Microsoft / Hotmail / Live.com. Will show IP addresses that are currently blocked by Microsoft.

A lot of folks have asked me about replacements for Delivery Monitor. There are, of course, Return Path and Pivotal Veracity, but many of the smaller mailers I talk to can’t justify the expenditure for either service.

Enter Green Arrow Monitor, a service provided by Green Arrow. This is a new seed list service aimed at marketers that need some delivery monitoring at commercial US ISPs. They’re reaching for the middle of the market. As a bonus, they’re offering special pricing for former Delivery Monitor customers.

While they don’t offer all the bells and whistles of other seedbox services, for the small to mid-size company that wants to know what their delivery is like at the major commercial ISPs this is a worthwhile service to investigate.

Full disclosure – I worked with GreenArrow to look at what parts of the market were being missed by other monitoring services and provide delivery consulting for some of their customers.

Overall, I think this is something that Return Path can be proud of. Yahoo fiercely protects their users’ inboxes. They have even gone so far as to cancel contracts with certification companies when the level of certified clients was not to their standards. I have no doubt that this decision was made by looking at the quality of customers that Return Path are certifying and deciding that the certification is a meaningful and useful measure of the mail.

This speaks to the time and effort Return Path commits to both the initial certification process and the ongoing monitoring and compliance processes.