One marketer described it to me as “Total marketing porn.”

I even took a screen shot of someone doing a drop of their “September Account Statement” to customers.

I even thought about trying to do some contest where I would give away some free consulting time to a sender that could make “Hi Laura” trend. But I decided that would be mean to do to recipients and to Yahoo.

But it’s amusing to think I could convince a big enough sender to trend a certain word.

Have a great weekend.

Visualize Yahoo! Mail

Make sure you click on the “Trending Keywords” on the left hand side of the image.

Snapshot of Yahoo trending subject words: note "Free" is in the good words and the bad words.

Yesterday, a bunch of people noticed that Yahoo was blocking mail containing references to a protest against Wall Street. This understandably upset people who were trying to use email as a communication medium. Many people decided it was Yahoo (a tool of the elites!) attempting to censor their speech and stop them from organizing a protest.

Yeah. Not so much.

Yahoo looked into it and reported that the mail had gotten caught in their spam filters. Yahoo adjusted their filters to let the mail through and all was (mostly) good.

I don’t think this is actually a sign of filters being broken. The blocked mail all contained a URL pointing to a occupywallst.com. I know there was a lot of speculation about what was being blocked, but sources tell me it was the actual domain. Not the phrase, not the text, the domain.

The domain was in a lot of mostly identical mail coming out of individual email accounts. This is a current hallmark of hijacked accounts. Spammers compromise thousands of email accounts, and send a few emails out of each of them. Each email is mostly identical and points to the same URL. Just like the protest mail.

There was also a lot of bulk mail being sent with that URL in it. I’ve been talking to friends who have access to traps, and they were seeing a lot of mail mentioning occupywallst.com in their traps. This isn’t surprising, political groups have some horrible hygiene. They are sloppy with acquisition, they trade names and addresses like kids trade cold germs, they never expire anything out. It’s just not how politics is played. And it’s not one party or another, it’s all of them. I’ve consulted with major names across the political spectrum, and none actually implement best practices.

As I have often said the secret to delivery is to not have your mail look like spam. In this case, the mail looked like spam. In fact, it looked like spam that was coming from hijacked accounts as well as spam sent by large bulk mailers. I suspect there was also a high complaint rate as people sent it to friends and family who really didn’t want to hear about the protests.

To Yahoo!’s credit, though, someone on staff was on top of things. They looked into the issue and the filter was lifted within a couple hours of the first blog post. A human intervened, overruled the algorithm and let the mail out.

I bet this is one of the few times anyone has seen that Yahoo does outbound filtering. Given it’s a politically charged situation, I can see why they assume that Yahoo is filtering because of politics and censorship. They weren’t though.

More on politics, filtering and censorship.

They’re not blocking you because they hate you
It really can be your email
More on Truthout
Another perspective on the politico article

As with blocking or filtering decisions targeted at malware or spyware, complaining that the ISP was improperly filtering bulk email (spam) is likely to fall on unsympathetic ears. It would take a lot for a court to allow a bulk emailer to conduct discovery on the filtering processes and metrics employed by an ISP. (Hence the rulings on a 12b motion, rather than on summary judgment.) Here the court reiterates the “good faith” standard for 230(c)(2) is measured subjectively, not objectively. That puts a heavy burden on plaintiffs to show subjective bad faith.

Multiple courts have now confirmed that activity taken to block internet traffic is solidly within the protections of the Communications Decency Act. While most courts agree that there is a possibility some ISP, somewhere, will block in bad faith, the burden of proof for that is on the plaintiff. And it seems that the burden of proof is going to be quite high.

Defendant’s motion to dismiss having been granted,
IT IS ORDERED AND ADJUDGED that Plaintiff’s complaint be dismissed without leave to amend and that the action be dismissed with prejudice.

The full text of the rulings are available (Yahoo order, Microsoft order).

There’s nothing very surprising here. The ISPs have immunity under the CDA and Holomaxx presented nothing that suggested the immunity should be lifted. In fact, during the hearing the judge specifically addressed this issue with Holomaxx.

The judge asked the plaintiff’s attorney for his “absolute best argument” as to the bad faith exhibited by the defendants.

The plaintiff responded that they are a competitor who is being stonewalled by the defendants. That their email is not spam (as it is CAN SPAM compliant) and it is wanted email. The defendants are not following the “objective industry standard” as defined by MAAWG.

The judge responded clarifying that the plaintiff really claimed he didn’t need to present any evidence. “Yes.” Judge Fogel mentioned the Towmbly standard which says that a plaintiff must have enough facts to make their allegations plausible, not just possible. the hearing

In his ruling, the Judge addresses the 230 Immunity question.

Section 230(c)(2)(A) of the CDA grants immunity to interactive computer service providers that act in good faith to “restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C. § 230(c)(2). This Court and others consistently have held that “§ 230 provides a ‘robust’ immunity, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003), and that all doubts ‘must be resolved in favor of immunity.’” Goddard v. Google, Inc., 2008 WL 5245490 at *2 (N.D. Cal 2008) (quoting Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1174 (9th Cir. 28 2008)).

[...]

While Yahoo! delivered at least some emails prior to June 2010, that fact alone is not sufficient to support a reasonable inference that Yahoo! acted in bad faith when it decided to block Holomaxx’s emails. Holomaxx fails to identify an industry standard that Yahoo! allegedly failed to follow. While the Messaging Anti-Abuse Working Group (“MAAWG”) promulgates certain guidelines, the FAC contains no facts supporting Holomaxx’s claim that the guidelines  amount to an industry standard. To permit Holomaxx to proceed solely on the basis of a conclusory allegation that Yahoo! acted in bad faith essentially would rewrite the CDA.  Accordingly, the Court concludes that Yahoo! is entitled to immunity from Holomaxx’s claims for computer fraud, intentional interference with contract, intentional interference with prospective business advantage, and wiretapping/eavesdropping.

And with that, another attempt to use the court to force ISPs to deliver unsolicited and unwanted email fails.

The judge is treating these two cases as basically a single case. When it came time for arguments, the cases were called together and both Yahoo and Microsoft’s lawyers were at the defendant’s table.

Oral arguments centered on the question of CDA immunity and to a lesser extent if there is an objective industry standard for blocking and dealing with blocks. Nothing at all was mentioned about the wiretapping arguments.

The judge opened the hearing with a quick summary of the case so far and what he wanted to hear from the lawyers.

Judge Fogel pointed out that current case law suggests that the CDA provides a robust immunity to ISPs to block mail. The plaintiff can’t just say that the blocks were done in bad faith, there has to be actual evidence to show bad faith. The law does permit subjective decisions by the ISPs. Also, that it is currently hard to see any proof of bad faith by the defendants.

The judge asked the plaintiff’s attorney for his “absolute best argument” as to the bad faith exhibited by the defendants.

The plaintiff responded that they are a competitor who is being stonewalled by the defendants. That their email is not spam (as it is CAN SPAM compliant) and it is wanted email. The defendants are not following the “objective industry standard” as defined by MAAWG.

The judge responded clarifying that the plaintiff really claimed he didn’t need to present any evidence. “Yes.” Judge Fogel mentioned the Towmbly standard which says that a plaintiff must have enough facts to make their allegations plausible, not just possible.

Yahoo!’s lawyer pointed out that both case law and the statutes require a robust showing to invalidate claims under the CDA. And that the purpose of the CDA is to protect ISPs from second guessing. She started to bring up the absolute numbers of emails, but was interrupted and told the numbers weren’t relevant. My notes don’t say if that was the judge or Holomaxx’s lawyer that interrupted, and the numbers discussion did come up again.

Yahoo continued that the CAN SPAM compliance is not a litmus test for what is spam. The decision for what is and is not spam is left to the subjective judgement of the ISP. She also pointed out that the numbers are important. She defined the amount of spam as a tax on the network and a tax on users.

She also addressed the anti-competitive claim. Even if Holomaxx is right, and neither defendant was conceding the point, and it is doubtful that the anti-competitive point can be proven, competition alone cannot establish bad faith. What evidence is there that either defendant exhibited bad faith? In Yahoo’s case there is zero advertiser overlap and in the Microsoft case Holomaxx showed one shared customer.

She then pointed out that the MAAWG document was a stitched collection of experiences from desks. That the document itself says it is not a set of best practices. She also pointed out that there was nothing in the document about how to make spam blocking decisions. That it was solely a recommendation on how to handle people who complain.

According to Yahoo!’s lawyer the plaintiffs brought this suit because they disagreed with the ISPs’ standards for blocking and they were upset about how they were treated. That the worst Holomaxx can say is the MS and Y! had bad customer service.

At this point there was some discussion between the judge and lawyers about how they were currently in a “grey area” between Rule 9(b) and Rule 12(b)6. I am not totally sure what this was about (one of my lawyer readers can help me out?) but there was also mention of using these rules in the context of the ISPs’ robust immunity under the CDA.

Finally, the judge asked Microsoft’s lawyer if he had anything more to add. He reiterated that the MAAWG document was not a standard, it was a collection of options. He also brought up the volume issue again, asserting that even if it is a true standard that the volume of unwanted mail sent by Holomaxx does not mean ISPs need to follow it.

Judge Fogle asked him if he meant there was no legal obligation for the ISPs to be warm and fuzzy.

The judge and defendant lawyers talked around a few general ideas about the MAAWG document. First that there was no obligation to tell senders enough information so that senders could reverse engineer spam filters. Microsoft also brought up the volume issue again, saying that the volume of unwanted 3rd party mail that the plaintiff was sending was, in itself, proof that the mail was bad.

Holomaxx interrupted claiming that the volume is a red herring. Judge Fogel countered with “but the gross number of unwanted emails is a huge number of emails.” Holomaxx’s lawyer argued that both Yahoo and Microsoft had large, robust networks, and the volume is irrelevant. I thought this was funny, given how often both of them have outages due to volume. However, the Holomaxx lawyer did have a point. Facebook sends billions of emails a day and both Yahoo and Hotmail can cope with that volume of mail and that volume dwarfs what Holomaxx sends.

The judge asked if he should look at the percentage of complaints about the mail rather than the gross number. Holomaxx replied that both were just a drop in the bucket and neither number was relevant.

Holomaxx then claimed again that MAAWG was a standard. The judge pointed out it was a standard for customer service, not a standard for blocking. Holomaxx disagreed and said that the MAAWG document was a standard for both how to block and how to deal with blocks afterwards.

The judge asked Holomaxx if there was any actual evidence of their claims. He talked about a case he heard a few years ago. Some company was suing Google because their search results were not on the front page of Google results. That company didn’t prevail because they never offered any actual evidence that Google was deliberately singling them out. He asked Holomaxx how they were being singled out.

Holomaxx replied there was no industry standard to measure against.

The judge wrapped up the hearing by pointing out that he was being asked to show where the exceptions to the CDA were and that he had to consider the implications of his ruling. He agreed that bad faith was clearly an exception to CDA protection, but what was the burden of proof required to identify actual bad faith. He seemed to think this was the most important point and one that would take some deliberation.

Overall, the hearing took about 15 minutes, which seemed in line with the case immediately before this one.

My impression was that the judge was looking for Holomaxx to argue something, anything with facts rather than assertion. But, I am scientist enough to see that may be my own biases at work. But the judge gave Holomaxx the opportunity to show their absolute best evidence, and Holomaxx provided exactly zero, instead falling back to it’s true because we said it’s true.

The judge will issue a written ruling, I’ll keep an eye out for it and post it when it’s out.

Holomaxx sued both Microsoft and Yahoo to force MS and Yahoo to stop blocking mail from Holomaxx.

The judge dismissed the initial complaint with leave to amend.

Holomaxx filed a first amended complaint.

Microsoft and Yahoo both argued that the first amendment complaint should be dismissed because it wasn’t fixed.

Holomaxx filed a motion in opposition to the motion to dismiss. Their arguments were reasonably simple.

1. MAAWG is a standards setting body and Yahoo and Microsoft are violating the standards set by MAAWG.
2. We assert that both Yahoo and Microsoft are screening our emails before our emails hit their system thus it qualifies as wiretapping.
3. Our emails are confidential.
4. We compete with Microsoft and  Yahoo as advertising agencies, thus everything the ISPs are doing is anti-competitive behaviour.

Last week I discovered that both Microsoft and Yahoo filed another memo of law in support of its motion to dismiss the first amended complaint. Their arguments, too, were relatively simple.

1. The MAAWG document in question is not a standards document, it is a summary of current practices.
2. Holomaxx can’t explain how they think the “wiretapping” is happening and they should not be allowed discovery in order to create this argument.
3. Neither ISP is actually a competitor of Holomaxx.

I think Yahoo’s lawyers, again, summed it up.

Plaintiff has had and squandered the opportunity to meaningfully amend its pleadings to state a plausible claim based on well pleaded facts and viable legal theories. Further amendment would be futile and should be denied.

The hearing is currently scheduled for 9am on Friday in San Jose.

They are continuing to claim that Microsoft is scanning email before the email gets to Microsoft (or Yahoo) owned hardware.

Holomaxx has sufficiently alleged that Microsoft intercepted and scanned the contents of Holomaxx!s emails ” in transit without consent by using Bayesian techniques and a collaborative filtration system before the emails reached Microsoft’s servers [...]

Best I can figure Holomaxx seems to have convinced their lawyers that “Bayesian techniques” are some sort of magic, psychic filters that can look at packets on a wire and see what’s in them. This is so far from the truth as to be ludicrous.

Bayesian classifiers work by correlating the use of tokens (typically words, or sometimes other things), with spam and non spam e-mails and then using Bayesian inference to calculate a probability that an email is or is not spam.

A Bayesian filter is software. It has to run on hardware somewhere. Someone owns that hardware. In this case, it’s Micosoft and Yahoo.

I can see that Holomaxx is trying to get across that the filtering happens before the ISPs accept the emails. But this doesn’t mean the filters aren’t running on hardware owned by Yahoo or Microsoft. It is possible to content filter email during the SMTP transaction, often referred to as “on the wire.” But, in reality, the filters are still running on hardware owned by the recipient’s ISP. The receiver is just looking at the mail before it makes a decision whether or not to accept responsibility for delivering the email to the final recipient.

A new argument in this motion is that the emails were all confidential and that Holomaxx had a reasonable expectation that the mails would not be overheard or recorded. I’m not sure the advertisements Holomaxx has used as examples (Free HBO from Dish Network!) are actually confidential.  As a layperson I find it hard to see how this argument will work.

Holomaxx also doubles down on their argument that the MAAWG abuse desk best practices document is an objective industry standard.

Yahoo makes much about the fact that the MAAWG Abuse Desk Common Practices paper was from an October 2006 meeting. This is a mischaracterization of the document. The document specifically states that it was assembled with feedback received in sessions from three MAAWG meetings beginning in October 2006. (See Request for Judicial Notice submitted by Yahoo in support of MTD, Ex. 1.) The document was published in October 2007. (Id.) Regardless if it is 3 1⁄2 years old, no other set of practices have been promulgated by MAAWG or any other group concerning the topic of filtered emails. Until that happens, the MAAWG Abuse Desk Common Practices paper serves as the only industry guidelines or standard on that topic.

Once again, the document in question is not a standards document. Holomaxx conveniently ignores what the actual document is about: Abuse desk common practices. In many ISPs, abuse desks do not deal with blocking issues at all. The committee chose to comment on this because some abuse desks handle both inbound and outbound abuse. We’ll see what the judge says, though. I think that Holomaxx is taking the document totally out of context in order to demand, somehow, that their mail shouldn’t be blocked.

There is a hearing on both cases July 15th. I’m considering going down to the courthouse to listen in on the arguments.

Previous blog posts on the Holomaxx case:

• Futher amendment would be futile
• Holomaxx Status
• Amendment is futile, part 2
• Holomaxx v. MSFT and Yahoo
• Amendment is futile
• Email and law in the news
• Holomaxx dismisses part of lawsuit
• Comments on Holomaxx post
• The myth of the low complaint rate

1. Motion to dismiss (Microsoft, Yahoo)
2. A comparison of the original complaint and the first amended complaint (Microsoft redline, Yahoo Redline)
3. A request for judicial notice of the MAAWG Abuse Desk Common Practices document.

The motions to dismiss the first amended complaint are not that different from the original motions to dismiss. This isn’t that unexpected as the first amended complaint isn’t that different from the original complaint. In fact, the comparison between complaints is intended to show how little Holomaxx changed or improved their arguments.  The request for judicial notice just asks the court to look at the MAAWG Abuse Desk Common Practices Document because Holomaxx quoted so extensively from the document.

The Yahoo lawyers don’t pull any punches in their motion and, in fact, seem to be treating this as an annoyance to be ridiculed. That’s not to say that their motion is not serious, they are very clearly defending their right to block mail and lining up all the precedents to support them. But, they don’t ignore an opportunity to deride Holomaxx and call them spammers.

This lawsuit is about Plaintiff Holomaxx Technologies’ failed attempt to exploit Yahoo!’s network, servers and users to deliver millions of Plaintiff’s for-profit email advertisements every day. Plaintiff wants a free ride on Yahoo’s systems, expecting Yahoo! to underwrite the operating costs of Plaintiff’s bulk email blasts, and Yahoo’s users to bear the convenience costs of inboxes clogged with unwanted junk mail. Plaintiff has no such right, and Yahoo! no such duty.  [...]

While Plaintiff has tried to add new factual allegations to evade the broad immunities provided by the CDA, and in response to the pleading deficiencies identified by this Court in its Order, those allegations are conclusory, irrelevant, and internally inconsistent. [...] In an attempt to demonstrate “bad faith” and to try to plead around the CDA and this Court’s Order, Plaintiff alleges that Yahoo!’s spam filtering violated objective industry standards, and that Yahoo! targeted Plaintiff for filtering in an attempt to disadvantage Plaintiff in the marketplace and to enhance Yahoo’s own relative competitive position as an advertiser. These are the only new “facts” alleged, and Plaintiff is wrong on both counts.

The “objective industry standards” Plaintiff now advances are nothing more than a six year old pastiche of meeting notes from an industry working group that was formed to streamline the handling of abuse complaints in the abuse desk environment. These notes do not appear to be intended to apply to inbound spam (as opposed to abuse from within one’s own network), and certainly do not function as an “objective” yardstick for evaluating the alleged bad faith of ISP filtering decisions with respect to inbound spam.

They even ended their motion by reminding the court that they said that letting Holomaxx refile would be futile.

Plaintiff has now had the benefit of this Court’s analysis of the shortcomings of its original Complaint, and the opportunity to correct those deficiencies in the FAC. Yet all the fatal flaws in the original Complaint remain in the FAC. Accordingly, this case should be dismissed without further leave to amend. Plaintiff has shown that further amendment would be futile.

A hearing is scheduled in San Jose on July 15th. I’m going to try and make it down, if only so I can shake the hand of the Yahoo lawyer that has made reading their pleadings so entertaining.

Previous blog posts on the Holomaxx case:

• Holomaxx Status
• Amendment is futile, part 2
• Holomaxx v. MSFT and Yahoo
• Amendment is futile
• Email and law in the news
• Holomaxx dismisses part of lawsuit
• Comments on Holomaxx post
• The myth of the low complaint rate