MySpace is facing a class action lawsuit arising out of the unauthorized transmission of text messages.  The complaint was originally filed in state court in IL (access the complaint in .pdf here), but was removed to federal court by defendants (access the removal filing in .pdf here) (h/t Prof. Goldman).

Interesting, is all I can say.  It's always tough to evaluate the merits of a case from looking at the complaint, but the allegations raise some fairly interesting issues:

• does CAN-SPAM apply to unauthorized text messages (there's some grey area here, my gut feeling is that it does)?
• does CAN-SPAM preempt IL law (e.g., Mummagraphics)?
• does CAN-SPAM prohibit the conduct at issue - is there anything misleading about the messages?  CAN-SPAM only requires that the messages be accurate and the sender honor opt-out requests - can MySpace argue that it need not have a mechanism in place for people to refuse to receive messages at all (a global opt-out)?
• Section 230 - is MySpace just a conduit?

Preemption:  the removal filing provides some clues as to a potential preemption defense by MySpace.  The complaint alleges claims under the state law version of the Computer Fraud and Abuse Act (the unauthorized insertion of a malicious program into a computer).  MySpace argues that if anything, the complaint could state a cause of action under the Illinois spam statute, and such a claim would be preempted by CAN-SPAM.  MySpace takes a broad view of CAN-SPAM preemption:


Given the somewhat narrow preemption language in CAN-SPAM (only a state law which "expressly regulates electronic mail to send commercial messages" is potentially preempted) it seems like MySpace's preemption argument is a stretch.  On the other hand, the CFAA-type claims asserted in the complaint seem like a stretch as well.  I'm always curious as to why these plaintiffs do not plead TCPA claims, but I'm sure there's a good reason lurking in there somewhere. 

Section 230:  Prof. Goldman offered with reference to the Abrams lawsuit that the claims were subject to an "easy 47 USC 230 12b dismissal".  I'm not so sure.

My take:  at first blush, the lawsuit seems like a repeat of Abrams, but the underlying allegations here are somewhat distinct.  I get the impression that the lawyers for the plaintiffs know what they're doing, so I'm curious to see how the initial skirmishes resolve.  One thing is certain, we're sure to see some significant CAN-SPAM activity around web 2.0.   And that should be fun.