Status Report

I suppose that it's possible that all that poor, SBL-listed Virtumundo wanted was to have someone look at their processes and pronounce them clean, but given the demand by e360's attorneys to remove their SBL listing, I think it's beyond obvious what e360's new business model is: Try to SBL-proof clients for as long as the injunction holds out.

But, you look at the proof and decide for yourself:

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

e360 INSIGHT, LLC, an Illinois Limited
Liability Company, and DAVID LINHARDT,
an individual,
Plaintiffs,

v.

THE SPAMHAUS PROJECT, a company
limited by guarantee and organized under the
laws of England, a/k/a THE SPAMHAUS
PROJECT, LTD.,
Defendant.

STATUS REPORT

Defendant The Spamhaus Project (“Spamhaus”)1 files this status report to advise Your Honor about a dispute that has arisen between the parties regarding the scope of the Court’s injunction order.

[1 Defendant expressly objects to this Court’s jurisdiction over The Spamhaus Project because
Defendant is based solely in the United Kingdom and does not conduct or transact business in
Illinois. Moreover, Defendant reserves its arguments based on Plaintiffs’ failure to properly
effect service of process.]

In short, plaintiff e360 Insight, LLC (“e360”) has taken the position that entities who become customers of e360 are covered by the language in the injunction order covering e360’s “affiliates, subsidiaries or related companies owned or controlled by Plaintiffs” – even though the companies have no relationship to e360 other than as its customer, and even though the companies were not an affiliate at the time the injunction order was entered. Plaintiffs appear to be trading on the Court’s injunction order by actually advertising and marketing their asserted ability to bring a new customer within the scope of the injunction order in an effort to obtain more customers.2 Because Spamhaus believes in good faith that customers who form nothing more than a contractual relationship with e360 after the Court’s injunction order was entered are not within the scope of that order, Spamhaus has declined e360’s request to remove addresses owned by those customers from the SBL. While Spamhaus does not seek any affirmative relief from the Court, Spamhaus desires to ensure that the Court is fully advised about the dispute.

[2 Spamhaus recently became aware that e360 is advertising various services to assist other
marketers with protection from Spamhaus. (Ex. A.) These “solutions” include: (1) TargetMX
Permission Email Solution; (2) Multichannel Lead Generation; (3) List Management and List
Rental; and (4) Date Enhancement. (Id.) Thus, e360 is actively marketing (by purchasing a
sponsored link on Google) a way for marketers to be protected from Spamhaus. In fact, an
internet search on Google of the term “Spamhaus” leads to a sponsored link for e360. (Ex. B.)
This advertisement states: “Problems With Spamhaus? Read how e360 helps clients verify
permission & remove SBL listings. www.e360insight.com.” (Id.)]

Here is some additional detail on the current dispute:

On June 15, 2007, counsel for e360 wrote counsel for Spamhaus and demanded that Spamhaus remove from its list of known spammers certain IP addresses owned by a company named Virtumundo. (Ex. C, letters relating to Virtumundo discussion.) e360’s June 15 letter asserts that Virtumundo is a customer of and doing business with e360, and that e360 has contracted with Virtumundo for network management and eMessaging services. (Id.) e360 attached to its letter the June 6, 2007 Service Agreement between e360 and Virtumundo, which provides for “customer network management” and “email management services.” (Ex. D.)

However, those terms are not defined in the Service Agreement, and Exhibit A to the Service Agreement (which is identified as containing the specific services included and the prices), was not provided. (Id.)

While the Service Agreement is silent on the exact nature of the services to be provided, it is clear on one thing: there is no relationship between e360 and Virtumundo other than “Service Provider” / “Customer.” Paragraph 17(k) of the Service Agreement specifically provides:

Service Provider [e360] is an independent contractor and nothing in this Agreement shall be deemed to make Service Provider an agent, employee, partner or joint venturer of Customer [Virtumundo]. Neither party shall have no [sic] authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

(Id. ¶ 17(k).) (e360 did not provide any information suggesting that, notwithstanding this provision, e360 has any ownership interest in Virtumundo.)

In light of the service provider/customer relationship, on June 22, 2007, Spamhaus informed e360 that Spamhaus declined to remove Virtumundo (specifically SBL 41635) from the SBL list.3 Three separate rationales support Spamhaus’ good faith position. First, Virtumundo does not come within the language of the injunction order because it is not an affiliate, subsidiary or related company owned or controlled by e360. Second, even if (contrary to fact) Virtumundo were now within the literal language of the Court’s injunction order, Spamhaus does not believe that the order covers entities that form a relationship with Virtumundo after the entry of the order but who had none with e360 when the order was entered.

[3 Virtumundo is on the list in the first place because it is a notorious purveyor of spam,
adware and spyware: a Google search of Virtumundo displays alerts from McAfee, Sophos and
CastleCops all indicating that Virtumundo uses spyware and adware. (Ex. E.)]

Third, Spamhaus respectfully believes that a variety of equitable doctrines will bar application of the injunction order to any new relationships that e360 may form as a result of marketing its supposed ability to use the Court’s injunction order “as a sword.”

Spamhaus will elaborate on the support for its position if and when e360 seeks relief from the Court on this issue. At this time, Spamhaus simply desires to keep the Court informed regarding the nature of the dispute and answer any questions Your Honor may have.

Respectfully submitted,

THE SPAMHAUS PROJECT

Dated: June 25, 2007 By: s/David Jiménez-Ekman _________

Craig C. Martin
David Jiménez-Ekman
Carrie A. Fino
JENNER & BLOCK LLP
330 North Wabash Avenue
Chicago, IL 60611
Telephone: (312) 222-9350
Facsimile: (312) 527-0484

e360 Response to leave to file status memo

e360 wants the status report filed by Spamhaus to be striken as it is immaterial to any case before the court.

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

E360INSIGHT, LLC, and
DAVID LINHARDT, an individual
Plaintiffs,

v.

THE SPAMHAUS PROJECT,

Defendant.

RESPONSE TO MOTION FOR LEAVE TO FILE A STATUS REPORT

Plaintiffs, e360Insight, LLC and David Linhardt (collectively Plaintiffs), by and through their attorneys, Synergy Law Group, LLC, in Response to the Motion for leave to file a Status Report filed be The Spamhaus Project, aka The Spamhaus Project Ltd., (Defendant) state as follows:

1. On June 25, 2007, Defendant filed a Motion for leave to file instanter a Status Report.

2. The Motion should be stricken pursuant to Fed. R. Civ. P. 12(f) because it is immaterial to any issue before this Court.

3. The Motion purports to advise the Court as to Defendant’s position concerning a request by Plaintiffs that Defendant remove certain IP addresses from its list of known spammers.

4. While Plaintiffs did make a request to remove the listing, Defendant refused and Plaintiffs took no further action.

5. Plaintiffs have not moved this Court to compel Defendant to remove this listing or in any way take up this Court’s time with this particular issue.

6. Defendants’ Motion injects immaterial information into this case and should be stricken pursuant to Fed. R. Civ. P. 12(f).

Respectfully submitted,

E360Insight, LLC. and David Linhardt

By: /s/ Daniel J. Peters
One of Their Attorneys

Bartley J. Loethen (6225484)
Joseph L. Kish (6197916)
Daniel J. Peters (6272859)
Synergy Law Group, LLC
730 West Randolph, 6th Floor
Chicago, Illinois 60661
Telephone: (312) 454-0015
Facsimile: (312) 454-0261

Order on Motion

Judge denied Spamhaus' motion for leave to file status report.