Great Circle Associates List-Managers
(September 1996)

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Subject: Re: Jodge orders AOL to allow junk email...
From: meo @ schoneal . com (Miles O'Neal)
Organization: Schober O'Neal, Inc / Net Ads
Date: Sun, 8 Sep 1996 18:16:39 -0500 (CDT)
To: mcb @ postmodern . com
Cc: list-managers @ GreatCircle . COM
In-reply-to: <3232098B . 20B1 @ postmodern . com> from "Michael C. Berch" at Sep 7, 96 04:49:02 pm
Reply-to: meo @ schoneal . com (Miles O'Neal)

Michael C. Berch responded to someone else:

|Since it is the users' contract rights who are (arguably) being
|violated, it is up to a user to assert those rights; the spammer company
|cannot assert them vicariously.  I can't think of a theory of law under
|which AOL owes a duty of performance to the spammer company.

I think the law agrees with you completely.  One of the nice things
about the Internet is that it *isn't* the Post Office.  And even there,
we have rules.  If you don't send it via the post (pay the post office
by way of stamps or a permit to deliver it), at least in the USA, it is
*illegal* to put it in their mailbox.

The equivalent here would roughly be that the spammers would have
to pay AOL to provide their information to the customers.  I believe
this is called advertising, and it looks like the spammers don't
want to do that.  They tried, and I can't blame them too much for
that - they are, after all, marketing weasels (not all merketers are
weasels, but I think these are) - but they failed, and now they are
trying to force their wishes (free junk mail) down everyones' throats.

[the someone else said:]

|> AOL is taking this course in pursuit of filthy lucre - period!

Well, if you don't like "filthy lucre", you are welcome to go live
in a cave, and live off nuts, berries, and whatnot.  But since you
have managed to send email, I'd suspect that you trade some portion
of your life for this same "filthy lucre", and that you furthermore
destroy the lievs of others by giving them this "filthy lucre" in
return for lodging, food, etc.  So you must not think much of
yourself - by your own words.  Perhaps you'd care to rethink, or
at least reword, your position.

|Well, one person's "filthy lucre" is another's "sound business
|judgment". Presumably AOL is taking this step for a variety of business
|reasons, ranging from the capacity issues you mention, to good public
|relations, to wanting to protect the *other* commercial solicitations
|that it exposes its members to (and charges advertisers for).  I don't
|find any of these to be unacceptable business ethics.

I have to agree.  If the members don't like it, they can always
go somewhere else, somewhere more receptive to spamming - no?
Or, if tehy feel wronged, they can take their contract to their
lawyer, and consider suing AOL themselves.  Frankly, I'd love to
be the judge in that case.  Assume for a moment that it's not
explicitly stated in the contract.  Assume for the moment that
you convince me that you have a reasonable right to be spammed.
Does this mean you get Big Money?  No.  You would get treble
damages.  And since the damages are that you didn't get spammed,
I would tell AOL to send you *three* copies of every spam that
should have been yours.  And if it happened to push your disk
space over some limit, or run your connect time up, that would
be your problem.  I might even suggest you pay triple.



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From: meo @ schoneal . com (Miles O'Neal)
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