Gordon v. Virtumundo: 9th Cir Smacks Down Anti-Spammers in Trifecta Defense Win

The 9th Circuit issued its long awaited opinion in Gordon v. Virtumundo, and “wow,” is all I can say! It’s a resounding win for Virtumundo and picks up where Mummagraphics left off – the anti-spam community suffers a crushing defeat. Access the opinion here [pdf]. Congrats to Derek Newman and Randall Moeller (of Newman & Newman) counsel for Virtumundo. As far as opinions go, this is as good as it gets.

Quick background: Gordon was one of the many plaintiffs who were not ISPs in the traditional sense but brought claims under CAN-SPAM. He (and his ISP) sued Virtumundo alleging claims under CAN-SPAM and under Washington’s email statute. After extensive discovery, the district court (Judge Coughenour, who rightly gets props in the Ninth Circuit opinion) granted summary judgment for Virtumundo, finding that Gordon had not suffered adverse effects under CAN-SPAM and that his claims under the Washington email statute were preempted. Gordon appealed, proceeding pro se, and then picking up a lawyer along the way. The Ninth Circuit resoundingly rejected his appeal, finding that he was not a “bona fide” ISP who could sue under CAN-SPAM, he had not suffered adverse effects under the statute, and his claims under the Washington statute were preempted. The Washington State Attorney General filed an amicus brief arguing against preemption and the Ninth Circuit pretty much rejected the AGs arguments as well. The Ninth Circuit opinion also had some choice words for the anti-spam community, echoing what I’ve been saying here for some time: anti-spammers could muck things up for everyone.

Was Gordon the Provider of an Internet Access Service: The first question the Ninth Circuit tackled was whether Gordon was an ISP at all under the statute. Surprisingly, the court held that he wasn’t. There is a wealth of precedent finding an extremely low bar for ISP status, but the court nevertheless finds that Gordon is not a “bona fide” ISP. The court smartly acknowledges that the landscape has changed since the enactment of CAN-SPAM, and if all you need to do is to provide email addresses for someone, pretty much everyone, including average consumers can satisfy the definition of ISP. Several facts influenced the court’s conclusion, but two stand out. First, the rabid nature of the anti-spam community didn’t do much to sway the court:
despite what Gordon and likeminded anti-spam enthusiasts might contend, the purpose of the CAN-SPAM Act was not to stamp spam out of existence. While Gordon is likely not alone in his deep-seated hostility toward spam and those who profit from it, there are beneficial aspects to commercial email, even bulk messaging, that Congress wanted to preserve, if not promote.
Ouch. Second, Congress wanted to allow for a right of action for a select group of private plaintiffs, and lawmakers in the court’s view were wary of the possibility that the threshold might be circumvented. Gordon basically was a consumer, who obtained domain name and hosting services from third parties, and as such he didn’t fit the intended definition of an ISP for purposes of CAN-SPAM.

Was Gordon Adversely Affected: With respect to whether Gordon suffered “adverse effects,” the court agreed with the district court that Gordon suffered harm as a typical consumer, and didn’t suffer any ISP-specific harm that was caused by the emails at issue. With respect to this issue, the court found Gordon’s zeal particularly uncompelling, in fact, as with the ISP issue, it pretty much undermined his cause:
It is readily apparent that Gordon, an individual who seeks out spam for the very purpose of filing lawsuits, is not the type of private plaintiff that Congress has in mind when it fashioned [CAN-SPAM’s] standing provision. While many anti-spam enthusiasts may applaud his zealous counter-attack against alleged spammers, Gordon’s passion for the cause does not displace the will of Congress in drafting a narrow private right of federal action.
The court notes that the garden variety ISP will not be affected by this decision as it is reasonable to presume that the typical ISP would suffer injury from spam.

Were Gordon’s State Law Claims Preempted: On the issue of whether Gordon’s state law claims were preempted, the Washington AG argued that the Washington email statute only extended to “acts of deception.” Gordon basically brought flimsy claims under the state email statute arguing that Virtumundo’s use of vanity email addresses violated Washington email statute because no actual person existed which used the email address in question. (I never understood Gordon’s argument here honestly, but either way, the court rejects Gordon’s interpretation of the Washington email statute.) The Washington AG tried to argue for a nuanced resolution of the issue, seeking to preserve the viability of the state email statute, but after the court’s decision in Virtumundo, things seem pretty murky on the Washington email statute front. The preemption discussion is interesting also because it cites to Altria Group, a recent US Supreme Court preemption case, to bolster its conclusion. The court also endorses the Fourth Circuit’s conclusion in Mummagraphics.

Judge Gould issued a concurring opinion, which can be summed up as follows: “you don’t get to sue if you brought about the harm in question.”


This is a packed up opinion with a lot of implications. There are a slew of pending cases that will likely be touched by this (Asis, Kleffman, etc.). At a basic level, the 9th Circuit’s resounding rejection of the “litigation factory” approach to CAN-SPAM litigation is appropriate. As to whether the decision will affect the ability of typical ISPs to bring claims, I’m not sure.

More later. I’m curious to see what the usual suspects have to say! (Prof. Goldman; Jeff Neuburger)

Posted by Venkat at 8/6/2009 9:24 AM
Categories: CAN-SPAM,Spam,Consumer,Anti-Spammers

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8/6/2009 4:58 PM yahoo wrote:
When CAN SPAM became law, it was obvious that Congress wanted to protect spammers, but at the same time pretend that it was doing something to stop the “problem” of spam. That criticism was leveled at the time of its passage when anti-spammers called it the “You CAN SPAM Act.” That analysis has proven completely true. Since 2004, the amount and cost of spam has grown exponentially. This is true regardless of how you define “spam.”

This decision just makes the fact that there is no effective regulation of spam much more apparent. Even before this decision, no one could credibly argue that the law provides any real deterrent to spammers.

Thus, what you view as a loss for Gordon and the little guys is actually something of a victory. The holes the 9th shot in CAN SPAM and CEMA aren’t limited to just standing. They go much further, and apply to actions brought by ISPs, AGs, etc. Paula Selis and Microsoft’s (David Bateman’s) little toy, aka as “CEMA”, is now gone. History.

When you say “I’ve been saying here for some time: anti-spammers could muck things up for everyone” what you fail to recognize that for the anti-spammers that was always the point. From the anti-spammers perspective, if they don’t have the right to sue spammers, they don’t want anyone to have that right.
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