iLegal - Another Setback for Illegitimate Anti-Spammers
Another Setback for Illegitimate Anti-Spammers
by Mark Meckler
The legal climate surrounding anti-spam litigation appears to be changing. Recently a court awarded $2.5M in damages against anti-spammer Mark Mumma for defamation. It seems that at least one court has recognized that along with legitimate anti-spam organizations which serve the good of all, there are also some bad anti-spammers out there.
In the Mumma case, the court found that Omega Travel’s "from" line and "subject" lines were not misleading in the context of an email which clearly stated its intent, and provided numerous ways to contact Omega Travel. The Court said that it was clear that Omega was not trying to hide its identity from consumers.
At the time of that ruling, there was discussion among some of the professionals in the industry, that perhaps the legal climate was changing and anti-spammers would be held to the same legal standards as everyone else. Some were skeptical, but continuing events seem to support this theory.
In an early March column, I brought up the case of e360 Insight, an email marketing company that had brought suit against individuals it claimed had defamed the company. The legal approach of claiming defamation by anti-spammers is a common theme in these two cases. Unfortunately, e360Insight’s case was dismissed when neither party showed up for a hearing. I guess we’ll never know how the court would have decided that one. But the trend seems clear.
According to a column by Ken Magill in the May 15 issue of Direct,
A federal judge earlier today threw out anti-spammer and self-proclaimed serial litigator James S. Gordon’s lawsuit against e-mail marketer Virtumundo.
Significantly, the judge cited vacation marketer Omega World Travel’s recent court win over anti-spammer Mark Mumma in making his ruling.
Just as significantly, the judge also ruled the defendants can recover attorney fees.
http://directmag.com/disciplines/email/judge_anti-spam_virtumundo/
(As an aside, if you don’t already read Ken’s columns, I think you should. He really stays on top of the business, and his column is a great resource. Check out more of his stuff at (http://directmag.com/magill/). No disclaimer necessary either, as I’ve never met or spoken to Ken.)
So now we have a U.S. District Court, citing another Court in ruling against anti-spammers. While this is not binding precedent on other U.S. District Courts around the nation, it does have an effect on them. When doing their legal research, they will look to see if other Courts have ruled upon seemingly novel issues before them. The more Courts that get asked to rule on these matters and rule like these two Courts, the more likely it becomes that future cases will turn out the same. It appears a trend is in motion.
Anti-spammers are an important part of the online ecosystem, with the reputable ones doing their best to prevent spam from clogging inboxes around the world. However, like any online community, there are those who take their passion for the subject beyond what is legal moral and acceptable, and use illegal or immoral means to accomplish their purpose. It seems that U.S. District Courts at least, are recognizing this, and they’re not going to put up with it.
I believe this trend is good news for everyone. When anti-spammers are held to the same legal standards as everyone else, it allows legitimate online advertisers who comply with the law to do their business. It also allows legitimate anti-spam organizations to do theirs. We all benefit in the process.
_____________________________________________________________
Come back to the iLegal column every week as we get specific about the rules, regulations, laws and trends that affect the online advertising industry. Each week we discuss important legal issues, talk about how to avoid the pitfalls, and cover the breaking legal and regulatory advertising industry news.
Legal Disclaimer: Information conveyed in this column is provided for informational purposes only and does not constitute legal advice. These materials do not necessarily reflect the opinions of Digital Moses, and is not guaranteed to be complete, correct, or up-to-date. The column is provided for "information purposes" only and should not be relied upon as "legal advice." This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this column without seeking the advice of an attorney.
Mark Meckler is the General Counsel for UniqueLeads.com, Inc., and Unique Lists, Inc.
Copyright 2007 Mark J. Meckler
Add to: Digg |
--------------------------------------------------------------------------------
Mark Meckler
General Counsel
UniqueLeads.com, Inc. / Unique Lists, Inc.
www.UniqueLeads.com
t: 561-253-6010 ext. 210
e: mark@uniqueleads.com
Showing posts with label Legal. Show all posts
Showing posts with label Legal. Show all posts
Thursday, May 17, 2007
Tuesday, March 13, 2007
Viacom to Sue Google and YouTube
Viacom says YouTube has failed to prevent breaches of copyright
Entertainment giant Viacom Media has announced that it is going to sue web search engine Google and video sharing website YouTube for $1bn (£517m).
Viacom has accused Google, which bought YouTube at the end of last year, of illegally using its TV programmes.
It said YouTube was guilty of "massive intentional copyright infringement".
Viacom claims that about 160,000 unauthorized clips of its programmes have been loaded onto YouTube's site and viewed more than 1.5 billion times.
The lawsuit seeks more than $1bn in damages and an injunction to prevent copyright infringement.
"YouTube's strategy has been to avoid taking proactive steps to curtail the infringement on its site," said Viacom in a statement.
"Their business model, which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws."
Last month, Viacom, which owns cable networks MTV and Nickelodeon, told YouTube to remove 100,000 "unauthorised" clips.
Viacom said its demand came after YouTube and Google failed to install tools to "filter" the unauthorised video clips.
Entertainment giant Viacom Media has announced that it is going to sue web search engine Google and video sharing website YouTube for $1bn (£517m).
Viacom has accused Google, which bought YouTube at the end of last year, of illegally using its TV programmes.
It said YouTube was guilty of "massive intentional copyright infringement".
Viacom claims that about 160,000 unauthorized clips of its programmes have been loaded onto YouTube's site and viewed more than 1.5 billion times.
The lawsuit seeks more than $1bn in damages and an injunction to prevent copyright infringement.
"YouTube's strategy has been to avoid taking proactive steps to curtail the infringement on its site," said Viacom in a statement.
"Their business model, which is based on building traffic and selling advertising off of unlicensed content, is clearly illegal and is in obvious conflict with copyright laws."
Last month, Viacom, which owns cable networks MTV and Nickelodeon, told YouTube to remove 100,000 "unauthorised" clips.
Viacom said its demand came after YouTube and Google failed to install tools to "filter" the unauthorised video clips.
Monday, March 12, 2007
Do-Not-Mail Movement Lurks in State Legislatures
By Ira Teinowitz and Ken Wheaton
Published: March 12, 2007
WASHINGTON (AdAge.com) -- Katy barred the door -- just her latest exercise in exerting control over marketing messages.
Consumer advocates have gotten do-not-mail bills on the agendas of legislatures in more than a dozen states.
Consumer advocates have gotten do-not-mail bills on the agendas of legislatures in more than a dozen states.
Having clearly established her ability to bad-mouth your brand on her blog, TiVo your TV commercials, stop your phone calls and filter out your pop-ups, now -- with the help of the government -- she's trying to stop you getting access to her mailbox.
Do-not-mail bills
More than a dozen states are considering do-not-mail lists. If passed, residents from Hawaii to Colorado, Maryland to New York and Texas to Washington state will be able to sign up for a list and be free of "junk mail" forever. If there's a glimmer of hope for the purveyors of old-school direct mail, it's that none of the bills have made it beyond the hearing stage.
Not that the proposal will come as that big a shock to a marketing world that is slowly but surely accepting that consumers are hanging up no-trespassing signs at most points of media entry. They simply don't want marketing messages thrust at them -- no matter how clever or engaging or empowering those messages might be -- and, thanks to a mix of technology, government intervention and old-fashioned indifference, have plenty of ways to live lives that involve engagement with brands only on their terms.
Pop-ups, TV ad zapping
Consumers long ago killed the majority of pop-ups, and there's a growing body of evidence that there's little interest in banner ads except where they're very carefully targeted. A small percentage -- somewhere between 12.7% (Nielsen) and 15%, depending on the source -- are using DVRs, with IRI estimating that'll be around 38% by 2008. And, although recent studies have shown DVR users don't all skip commercials and actually watch more TV than non-DVR users, the point is that they can skip or ignore ads if they want to. (Some like to point out that they've always had an on-off switch.)
They've signed up in droves for first state and then federal do-not-call lists. At the last count, 139 million had said no to telemarketers. And now they're looking to keep marketing messages out of their mailboxes.
Forget court battles, marketing 2.0
So what are marketers to do? Court battles and appeals to free speech have proved to be temporary solutions at best when the public and politicians become determined to tackle a marketer (tobacco) or a method (you name it). Portraying yourself as victim doesn't convince consumers, especially not when you're a big, profit-making corporation. And before the marketing 2.0 crowd rushes to the rescue, consider this: Contextual ads can, and often will, be ignored; the mobile phone is considered by many a very personal thing, and mobile users are unlikely to take kindly to any messages they don't request. A do-not-text list seems entirely feasible today too.
Even today's most talked-about methods are no sure things. As Lori Schwartz, VP-director of Interpublic's Emerging Media Lab, said at the Ad Age Digital Marketing Conference, "Viral marketing is really overhyped. The word viral should go back to being a medical term." The answer, she said, is "all about community."
In short, marketers will have to open their own doors and figure out ways to lure customers in, said Pete Blackshaw, chief marketing officer of Nielsen BuzzMetrics, who adds it'll probably get worse before it gets better. "We've reached this perfect storm of consumer power and advertising intrusion. The inevitable outcome of marketers continuing their siesta of indifference or inaction is regulation, and I think the next election cycle -- coupled with a Democratic-controlled Congress -- is going to accelerate overtures for oversight.
'Opt-in messaging'
"We need to think about advertising in a different context, and well beyond just paid media. Listening to consumers via consumer affairs is an easier, more effective way of advertising to consumers. Inviting consumers to participate in an online community is a more accepted form of 'opt-in' messaging."
Mr. Blackshaw held up Intuit, maker of TurboTax and Quicken, and its 100,000-strong online community as an example. Such communities allow consumers to interact and reinforce their experiences with the brand. It also implies that the marketer is listening.
"We need to become far better listeners, and that's hardly a pitch for what I do and sell," he said. "Smart listening will guide better strategy and ultimately guide us to the ad models that are sustainable and win-win in the eyes of consumers."
"Listening is a very underrated marketing strategy," Communispace President-CEO Diane Hessan said at the Digital Marketing Conference, adding that marketers would be better served if "we would all just shut up and listen."
Sneak into homes
Beyond that, marketers will have to sneak into homes, relying on branded entertainment, sponsorships and, while they're still tolerated, methods such as in-game advertising.
Frito-Lay is among those getting creative to get into consumers' living rooms. The snack marketer recently signed on to embed its Lay's brand in the syndicated reality show "HomeTeam." Pete Sniderman, chief operating officer of "HomeTeam" distributor Litton Entertainment, said in a recent interview, "Lay's really sees that they need a defense to the world of TiVo and wants more ways to get their brand into content."
Meanwhile, the Direct Marketing Association and similar groups will continue to fight for their rights to market. Jerry Cerasale, senior VP of the DMA, is laying out reasons ranging from unconstitutionality to economic impacts on both the $900 billion direct-mail industry and the Postal Service.
"It would be hard on the economy," he said.
He added that one reason do-not-call lists passed court challenges was marketers had other options to reach consumers.
That such options are dwindling doesn't seem an argument that holds much sway over consumers.
Published: March 12, 2007
WASHINGTON (AdAge.com) -- Katy barred the door -- just her latest exercise in exerting control over marketing messages.
Consumer advocates have gotten do-not-mail bills on the agendas of legislatures in more than a dozen states.
Consumer advocates have gotten do-not-mail bills on the agendas of legislatures in more than a dozen states.
Having clearly established her ability to bad-mouth your brand on her blog, TiVo your TV commercials, stop your phone calls and filter out your pop-ups, now -- with the help of the government -- she's trying to stop you getting access to her mailbox.
Do-not-mail bills
More than a dozen states are considering do-not-mail lists. If passed, residents from Hawaii to Colorado, Maryland to New York and Texas to Washington state will be able to sign up for a list and be free of "junk mail" forever. If there's a glimmer of hope for the purveyors of old-school direct mail, it's that none of the bills have made it beyond the hearing stage.
Not that the proposal will come as that big a shock to a marketing world that is slowly but surely accepting that consumers are hanging up no-trespassing signs at most points of media entry. They simply don't want marketing messages thrust at them -- no matter how clever or engaging or empowering those messages might be -- and, thanks to a mix of technology, government intervention and old-fashioned indifference, have plenty of ways to live lives that involve engagement with brands only on their terms.
Pop-ups, TV ad zapping
Consumers long ago killed the majority of pop-ups, and there's a growing body of evidence that there's little interest in banner ads except where they're very carefully targeted. A small percentage -- somewhere between 12.7% (Nielsen) and 15%, depending on the source -- are using DVRs, with IRI estimating that'll be around 38% by 2008. And, although recent studies have shown DVR users don't all skip commercials and actually watch more TV than non-DVR users, the point is that they can skip or ignore ads if they want to. (Some like to point out that they've always had an on-off switch.)
They've signed up in droves for first state and then federal do-not-call lists. At the last count, 139 million had said no to telemarketers. And now they're looking to keep marketing messages out of their mailboxes.
Forget court battles, marketing 2.0
So what are marketers to do? Court battles and appeals to free speech have proved to be temporary solutions at best when the public and politicians become determined to tackle a marketer (tobacco) or a method (you name it). Portraying yourself as victim doesn't convince consumers, especially not when you're a big, profit-making corporation. And before the marketing 2.0 crowd rushes to the rescue, consider this: Contextual ads can, and often will, be ignored; the mobile phone is considered by many a very personal thing, and mobile users are unlikely to take kindly to any messages they don't request. A do-not-text list seems entirely feasible today too.
Even today's most talked-about methods are no sure things. As Lori Schwartz, VP-director of Interpublic's Emerging Media Lab, said at the Ad Age Digital Marketing Conference, "Viral marketing is really overhyped. The word viral should go back to being a medical term." The answer, she said, is "all about community."
In short, marketers will have to open their own doors and figure out ways to lure customers in, said Pete Blackshaw, chief marketing officer of Nielsen BuzzMetrics, who adds it'll probably get worse before it gets better. "We've reached this perfect storm of consumer power and advertising intrusion. The inevitable outcome of marketers continuing their siesta of indifference or inaction is regulation, and I think the next election cycle -- coupled with a Democratic-controlled Congress -- is going to accelerate overtures for oversight.
'Opt-in messaging'
"We need to think about advertising in a different context, and well beyond just paid media. Listening to consumers via consumer affairs is an easier, more effective way of advertising to consumers. Inviting consumers to participate in an online community is a more accepted form of 'opt-in' messaging."
Mr. Blackshaw held up Intuit, maker of TurboTax and Quicken, and its 100,000-strong online community as an example. Such communities allow consumers to interact and reinforce their experiences with the brand. It also implies that the marketer is listening.
"We need to become far better listeners, and that's hardly a pitch for what I do and sell," he said. "Smart listening will guide better strategy and ultimately guide us to the ad models that are sustainable and win-win in the eyes of consumers."
"Listening is a very underrated marketing strategy," Communispace President-CEO Diane Hessan said at the Digital Marketing Conference, adding that marketers would be better served if "we would all just shut up and listen."
Sneak into homes
Beyond that, marketers will have to sneak into homes, relying on branded entertainment, sponsorships and, while they're still tolerated, methods such as in-game advertising.
Frito-Lay is among those getting creative to get into consumers' living rooms. The snack marketer recently signed on to embed its Lay's brand in the syndicated reality show "HomeTeam." Pete Sniderman, chief operating officer of "HomeTeam" distributor Litton Entertainment, said in a recent interview, "Lay's really sees that they need a defense to the world of TiVo and wants more ways to get their brand into content."
Meanwhile, the Direct Marketing Association and similar groups will continue to fight for their rights to market. Jerry Cerasale, senior VP of the DMA, is laying out reasons ranging from unconstitutionality to economic impacts on both the $900 billion direct-mail industry and the Postal Service.
"It would be hard on the economy," he said.
He added that one reason do-not-call lists passed court challenges was marketers had other options to reach consumers.
That such options are dwindling doesn't seem an argument that holds much sway over consumers.
Subscribe to:
Posts (Atom)
