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Oklahoma Anti-Spammer Loses Big in Court

John Levine

In November, Mark Mumma, who runs a little design firm at webguy.com, lost an appeal in the Fourth Federal Circuit. He'd filed suit against cruise.com and their parent Omega World Travel under CAN SPAM and an Oklahoma anti-spam law. Omega countersued for defamation. The court threw out Mumma's case, and allowed part of the defamation case to proceed. At first blush, this looks like a big win for spammers.

But read the decision [PDF], and you'll find that Mumma did just about everything he could to be sure he lost the case. He didn't try to document any meaningful violations of law. Instead he called up the other party and yelled at them. He also made some rather overoptimistic interpretations of Oklahoma law which CAN SPAM preempted.

The judge said that regardless of we think about spam in general, CAN SPAM sets out specific rules which cruise.com followed pretty closely, and those are the ones the court has to enforce. We all know that CAN SPAM says spamming is legal. As David Sorkin noted, CAN SPAM legitimizes spam by regulating it, and even though the mail from cruise.com looked pretty spammy, if the law says it's legal, suing the sender isn't going to accomplish anything.

Don't take this for more than it is. The lesson is that if you plan to file a CAN SPAM suit, it would be a good idea to have some actual evidence of CAN SPAM violations in hand first.

CNet story about the case

By John Levine, Author, Consultant & Speaker
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