>There are no current court cases. There is, however, strong legal basis. I
>sell content to a customer which I deliver via email. You cut my route to my
>customer who has an email account with you. That prevents us from fulfilling
>our end of the deal between us and our customer. They paid us money, we
>didn't deliver.
In other words, your customer has every right to sue *you*.
Sam's exactly right. If you and your customer not only want to rely
upon a third party (an ISP) to conduct legally-binding business,
but want to reserve the right to *sue* that third party over it's
failure to continue to meet your expectations, then it is up to *you*
to enter into a *legally binding contractual agreement* with that
third party. (Actually, it's probably best for both you and your
customer to do so -- to ensure the ISP recognizes email coming from
you, to your customer, as never to be rejected for any reason.)
Yes, there are cases where the agreement is considered implicit, even
in the absence of a contract between two parties. E.g. the requirement
that a building constructed such that it blocks a pathway long used
by pedestrians must provide continued public access through it, which
leads to nonsense like businesses shutting down public access to their
private parking one day per year just to establish that they don't always
provide it, to avoid being caught up in such lawsuits without a quick
exit available.
But, the moment the Internet community perceives that someone might
even have a ghost of a chance succeeding with a lawsuit such as has
been proposed *here*, a substantial percentage of ISPs and email-hosting
sites will *shut down* their email (SMTP processing) with a message
saying something like "we are having problems with our email system,
but expect it to be fixed by [24 hours from shutdown], which happens
from time to time as you all know". The rest of them will do the
same thing later, on a fairly arbitrary schedule. All to try to eliminate
the argument that "well, it was there before and always worked, so I get
to sue the moment it isn't there for me".
Do you really *want* that to happen?
Further, it will be interesting to see how a lawyer tries to explain
how the concept I cited is extended to email, given facts such as:
- there exist *plenty* of alternate routes, i.e. other than
the SMTP port of an "offending" ISP, to reach the end user
of that system
- the end user of that system could always maintain accounts on
other ISPs and ask that duplicate mails be sent to them, to
assure likelihood of receipt of at least one of them (i.e. plenty
of alternate routes on the receiving end as well)
- letting pedestrians walk through your vacant lot for 30 years
and then erecting an impassable obstacle is hardly the same
thing as letting pedestrains walk through your back yard for
10 years but putting up "private property, keep out" signs
whenever you see an armored tank division rolling your way
(the equivalent of a huge flood of email)
In particular, *spam* will be impossible to distinguish from "wanted
email" in this kind of lawsuit, because the protocols used to exchange
the email do not include any way to assure "wanted" status.
Therefore, any whiff of a legal requirement to accept "legit" email
from anyone, anytime, will amount to accepting spam, and probably
denial-of-service attacks, as well. Spammers will probably be the
first to sue, though I think they have tried already (and failed).
Of course, the present US tort system might well encourage such lawsuits
nevertheless. Change it so the plaintiff pays triple *requested* damages
when the suit is determined to be frivolous (i.e. the problem can be
solved by entering into a legal agreement with the 3rd party, in this
case), and also make sure the jury can never award more than requested
damages, and I assure you nobody would *ever* bring such a case to trial.
(Note, I'm not arguing for "loser pays" *here*.)
IANAL, but I play one on the Internet. ;-)
And I'm finding the Internet to be more and more full of the sorts of
people who respond to not getting their pet email through (or seeing
themselves as possibly in that boat) by talking about hiring lawyers,
rather than making mindnumbingly simple adjustments in their privileged
little lifestyles. ("Like, place a phone call, goober, and use a modem
on both ends if it *really* has to be data you exchange." I said
basically this to some guy who pestered the EGCS mailing lists with
off-topic posts and got booted off -- the only guy to get booted? -- and
who also claimed, on that publicly archived mailing list, that my ISP was
run by incompetents because it wouldn't accept his email. He then
went on to tell me in private email that if I didn't *immediately*
agree with him and switch ISPs, I was an "elitist". I told him never
to email me again, which is too bad since he was technically quite bright
and seemed interested in some of my viewpoints as expressed on the EGCS
list, but I don't have time or patience to deal with spoiled e-brats.
Oh, the reason the ISP blocked his email is that he'd tell the SMTP
that he was coming from a different host than he actually was...there
are some good reasons for doing that, like when you don't like the
SMTP service, or lack thereof, of the ISP that hosts your *incoming* mail,
but my ISP believes it likely indicates spam or something. I'm not
sure who's right -- I don't think it's important, even though it also
means one of my brother-in-laws can't easily email me, due to his setup,
either. I believe all the people who care to email me, but can't, can
collectively adjust their email method to fit my ISP's requirements
with far less hassle than it'd take for me to switch ISPs...especially
since I'd have to negotiate "don't block lying SMTP clients trying to
reach me" as a special item on the contract. Heck, both of them
know my *old* address, which doesn't have that problem, and which
I check every day or so, anyway, but the first guy, not a relative, made
like I was an investor in 1980s South Africa because I was a customer
of an ISP that blocked email like his. That's an extreme case, but
I think I see a higher and higher percentage of Internet users take
this approach -- threaten, harrass, intimidate, and litigate -- compared
to those of us who used the approach of the old ARPANET days -- understand,
research, cope, and, if possible, fix it so it works better for
everyone. So much for the theory that American schools have been
better at teaching "tolerance" lately -- AFAICT they've been teaching
to sue at the hint of *intolerance* as defined by them, which is, to me,
pretty near the height of intolerance itself.)
tq vm, (burley)
