Great Circle Associates List-Managers
(May 1996)
 

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Subject: Re: AOL free accounts
From: Eric Thomas <ERIC @ VM . SE . LSOFT . COM>
Date: Sun, 12 May 1996 16:22:48 +0200
To: List-Managers @ GreatCircle . COM
In-reply-to: Message of Fri, 10 May 1996 11:39:34 EDT from Jered Floyd <jered @ mit . edu>

On Fri, 10 May 1996 11:39:34 EDT Jered Floyd <jered @
 mit .
 edu> said:

>On the contrary, I think it is a very good idea.

It remains an  absurd idea on simple factual  grounds. Spammers currently
charge their  patrons about $500 for  a spam. Adding $50-100  to that sum
would make absolutely no difference; it would still be thousands of times
cheaper than  traditional media, which is  how spam started in  the first
place. I have no  idea how much KK gets paid per  new subscriber from the
spam ad, but somehow I doubt the magazine company makes less than $50-100
out of the spam. They simply wouldn't bother.

To clarify,  I'm not  saying that it  wouldn't make sense  for AOL  to do
that. If AOL  makes people pay $100 per spam,  the spammers will probably
take their "business" elsewhere and AOL  won't have to worry about it any
longer. But it's only going to toss the hot potato elsewhere.

>Not many  people read all of  the license agreement in  the first place,
>but those who do probably won't be  the least bit frightened by a clause
>specifying that users  will be charged for 'inappropriate  use of system
>resources (e.g.  mass mailing to  thousands of Internet  addresses)'; or
>something similar.

Thank you  for providing a  perfect example of  the kind of  wording that
would  scare people  who have  limited but  existing Internet  knowledge.
"Mass mailing to thousands of Internet addresses" sounds very much like a
lawyer's description of  a mailing list, and many people  would assume it
means they can't write to mailing lists from their AOL accounts.

>   I think  you misunderstand our  legal system somewhat. It  would cost
>AOL absurd amounts of  money to sue one of these  spammers; and for what
>could they be sued? You mention  the 'fullest extent of the law'... what
>do you feel applies?

It's costing AOL  absurd amounts of money to handle  the aftermath of the
repeated spams.  Maybe more than  the lawsuit  would cost, maybe  less, I
have  no idea;  AOL probably  has  full-time on-staff  lawyers that  cost
significantly less than the ones you retain  by the hour. At any rate, if
they  sued  and established  a  precedent,  there  would  be a  lot  less
spamming.

There  are all  sorts of  non-computer laws  that can  be used  to sue  a
spammer. Surely you  must have heard of  tele-marketing companies getting
sued for lying about who they represented or because the rep gave a phony
name. The  only obstacle is  that these laws  have never been  applied to
electronic mail.

As for your  legal system, I think you're the  one who doesn't understand
it :-) What is going to happen to KK *concretely* if AOL sues him? Either
he finds someone to  defend him for free, or he's  gone (unless his spams
made him a millionaire, which I doubt).  This is a case where there isn't
going to  be a clear  cut answer  based on simple,  straightforward laws.
This is a case that  can drag on and on and on. AOL  can bring in a bunch
of experts to say all sorts of  relevant things and just make the case go
on while KK has to pay his lawyers  by the hour. I don't know, what would
*you* do if AOL sued you on something where the answer wasn't clear cut?
I don't own  a house, but if I  did I wouldn't sell it  to defend myself.
I'd try  to settle with  AOL (actually,  the government would  provide me
with a free lawyer, but this isn't the US).

>Unless  the  license  agreement  specifies   that  users  will  be  held
>responsible for  their actions; but  then we're  back in the  first case
>with fines.  So, instead of just  charging spammers $50, now  AOL should
>put stronger  language in  the license, and  spend thousands  of dollars
>_suing_ spammers to collect a $50 fine?

Your usage of the word "fine"  suggests a serious misunderstanding of the
US  legal system.  Under US  law it  is not  possible for  a contract  to
institute any kind of fine or other punitive damage (I think it's stupid,
but it's the way it is). Punitive damages are the sole prerogative of the
courts. Now sometimes it  makes a lot of sense for one  to want to define
small fines for common violations, simply  to avoid having to go to court
or even talk to a lawyer to  settle. You get around this by claiming that
the fine  offsets an extra  cost you have had  to bear. For  instance, in
case of late payment you can charge say $30 for "late payment processing"
- you  can get  away with it  even if  it only really  costs you  $3. The
problem with charging $50-100  for a spam is that it  implies this is the
extra cost of the  spam to AOL. This in turn could  make it difficult for
AOL to claim later  that a spam actually costs them  tens of thousands of
dollars or more.

>   And even  if they were  to sue Krazy Kevin,  or a similar  spammer, I
>don't think that other spammers would  take note. For them to take note,
>the  lawsuit  would have  to  be  widely  publicized so  that  potential
>spammers would be aware

Exactly, and very likely. If AOL doesn't publicize it, someone else will.
Heck, WE will!

>AND  the  potential spammers  would  have  to be  logical,  intelligent,
>scrupulous people.

No, they  just need to be  people who want  to keep their car  and house.
Quite likely I think.

  Eric

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