e360 v. Spamhaus has produced a lot of fodder.  There's more.   To recap, e360 (an Illinois company) sued Spamhaus, which is based in Europe.  Spamhaus appeared and removed the dispute from state to federal court, but later decided it would rather contest jurisdiction by not responding to the litigation.  The federal court to which the case was removed found Spamhaus in default and then entered an injunction against it.  The judgment is presently on appeal.  (I blogged here about the amicus brief filed by Matthew Prince on behalf of Spamhaus.)

Now it appears that e360 has moved to find Spamhaus in contempt, arguing that contrary to the injunction Spamhaus continued to list e360 on the spammer list (ROKSO) and as a result e360 lost some advertising relationships.  (Thanks to Spam Diaries for the pointer.)

This case raises a cornucopia of interesting issues.  I don't really have time to do more than flag them but they're worth mentioning nonetheless.

First, you can acess a [pdf] copy of the injunction here.  The injunction seems to state (roughly) that Spamhaus can only list an e360 domain / IP as a source of spam after it puts forth clear and convincing evidence that e360 is sending emails through that domain/IP in violation of US law (CAN-SPAM).  I don't think Spamhaus jumped through these hoops.  (On the flip side, how was Spamhaus supposed to know that a particular domain which is privately registered is registered to e360?)

Second, equally interesting (and something that's becoming increasingly relevant in litigation) is that e360 is moving to sieze the Spamhaus domain name.  It just served a writ of execution [access the pdf here] on the registrar (?).  Say what you will about e360, their lawyers are litigating this case in an extremely aggressive manner.  I'm not sure if a stay is already in place, or whether one has been requested and denied, but Spamhaus should be pushing for this. 

On the substantive side, the contempt issue is tricky.  Spamhaus listed domains/IPs which were privately registered – i.e., spamhaus did not know they had anything to do with e360.  This is a fair argument and if Spamhaus did not know a particular domain was registered to e360 (if this was not publicly available or provided to it by e360) then how is it supposed to know that by blacklisting a certain domain it was violating the injunction.  To construe the injunction otherwise would bring spamhaus to a grinding halt and stop it from listing any domain names/IPs. . . .  On the flip side e360 filed an affidavit saying they owned or "controlled" the domains in question.  Maybe Spamhaus should have been doing due diligence to make sure it did not unwittingly violate the injunction.  [The Spam Diaries attaches great significance to the fact that the actual ownership of those domains is at issue and that once documents are produced reflecting actual ownership e360 will be shown to be a spammer.  I would not go that far.]

This gets you wondering about the merits of Spamhaus's First Amendment arguments.  See, e.g., here (html version) (Volokh:  "Freedom Of Speech And Injunctions In Intellectual Property Cases").  The core of this argument is that injunctions prohibiting speech are only appropriate after a final adjudication on the merits.  At the preliminary stages, injunctions are generally inappropriate.  (Query as to whether this injunction fits in, given that it was issued on default.  I'm guessing the court has some independent obligation to make sure the injunction does not cover protected expression which the court failed to do in this case.)  This is argued in Spamhaus's appeal brief, but if it hasn't already, Spamhaus should seek emergency relief in the appeals court.  (There's also caselaw around when one can ignore an invalid order, particularly if it arguably constitutes a prior restraint.)  [At the end of the day a contempt finding is unlikely.]

A quick note about e360's appeal brief which I hadn't had a chance to take a look at.  (Access Spamhaus's  reply brief here and e360's here [both pdf].)  e360's brief is argumentative, and contains rhetoric that could earn a rebuke before the court.  (I say that as someone who is pretty squarely anti-Spamhaus, both based on personal experience and based on their wacky tax protester-libertarian undercurrent.)  e360's brief contains a line which is contender for most over-the-top:

Despite the Quixotic notions on which Spamhaus believes this appeal is warranted, this case involved nothing more than Spamhaus's interference with e360's legitimate business operations and Spamhaus' disdain for the United States courts that required Spamhaus to do more than ignore this case. 

Spamhaus's beliefs as to the merits of the appeal are far from Quixotic.  Although e360 won a round in the trial court and is pushing the issue aggressively, ultimately this will likely resolve in Spamhaus's favor.  There are numerous hurdles to e360's substantive claims, both based on the injunction and the merits.  Initially I was thinking Spamhaus would be well advised to settle this but now I think it's the other way around.