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A Third, More Interesting Round in E360 vs. Comcast

John Levine

In the past week, Comcast filed an answer, denying all of E360's charges, and attached to it a motion to file a most impressive counterclaim. The court granted the motion on Monday so the counterclaim has been filed. At about the same time, E360 filed its response to Comcast's previous motion to dismiss the suit due to its utter lack of legal merit.

An old lawyer once told me that when the law is with you, pound the law, when the facts are with you, pound the facts, and when neither is with you, pound the table. Having read E360's response I can report that the table has been reduced to splinters, but Comcast's argument has not. It starts by arguing against Comcast's Communication Decency Act sec. 230(c)(2) defense by citing a case that depended on a different section, 230(c)(1), and goes downhill from there. For amusement, see Spamsuite's comments and the response.

The counterclaim, on the other hand, reads as though Comcast said to their high powered and extremely competent lawyers: "Here's the facts and a million bucks. Make them go away."

The gist of the counterclaim is that the goal of the suit is to force Comcast to reveal how its spam filters work so E360 can get its spam through them, which Comcast, to put it mildly, isn't gonna do. It's worth reading the whole thing, but to whet your appetite, here's some fun quotes:

39. On June 21, 2006, e360 and Linhardt sued Spamhaus in the Circuit Court of Cook County, Skokie, Illinois, asserting claims arising from Spamhaus' listing of e360 on its ROKSO and/or SBL lists. On information and belief, e360 and Linhardt sued Spamhaus in Illinois knowing that the Illinois courts did not have jurisdiction over Spamhaus for the improper purpose of undermining Spamhaus' ability to engage in legitimate and lawful anti-spam activities.

41. After the Court Order was entered, Defendants' began marketing a new service called "IP Protection Services" to unrelated third-party e-mail marketers whose e-mail marketing messages were blocked by various ISPs, so that Spamhaus would be required to de-list those marketers from its lists.

45. On information and belief, a purpose of the IP Protection Services is to launder third-party spam that would otherwise be blocked through e360's de-listed IP addresses and servers.

46. For example, e360 entered into an agreement with Virtumundo, Inc. ("Virtumundo") on June 6, 2007, to provide the IP Protection Service. Attached hereto as Exhibit C is a copy of the Services Agreement entered into between e360 and Virtumundo.

47. On information and belief, Virtumundo sends spam.

76. On information and belief, e360 knew when it filed the complaint in this action that Comcast is immune from Plaintiff's claims under the Communications Decency Act, CANSPAM, and the laws of the various states including Illinois and Pennsylvania, and that Comcast is not a state actor subject to liability under the First Amendment.

77. On information and belief, e360 is pursuing this meritless legal attack for the improper purposes of:
a) learning how to circumvent the lawful Comcast Filtering System;
b) obtaining discovery, the purpose of which is to undermine the viability of filtering systems used by ISPs, including Comcast's Filtering Systems, and to undermine the ability of Spamhaus to provide reliable data to ISPs such as Comcast.

79. e360's misuse of the Court Order in the Spamhaus matter is an attempt to undermine the ability of Spamhaus to provide reliable data to ISPs such as Comcast.

By John Levine, Author, Consultant & Speaker. More blog posts from John Levine can also be read here.

Related topics: Spam

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