U.S. District Judge James Graham of Ohio today heard from both CompuServe and Wallace, Cyber Promotions' president. The judge has taken the matter under advisement, according to CompuServe attorney Robert Hamilton.
On October 24, the same judge issued a temporary restraining order against Cyber Promotions that barred the company from using a CompuServe account as a return email address for mass mailings.
Now CompuServe is asking Graham to take a much bigger step: banning Cyber Promotions from sending any unsolicited email to any user of the online service. If the judge sides with CompuServe, the case could clear the path for other online services to take the same legal remedy against junk emailers.
"Our legal argument is that we have told him not to do it, that his sending of those messages is unauthorized, and by continuing to do so, he is committing a trespass on our equipment," Hamilton said.
CompuServe has looked into technological ways to stop junk email, but it says those remedies can be circumvented. "We have to be able to establish the bedrock principle that if we say, 'Stop it,' you have to stop it. You have to respect our property rights," Hamilton said.
Wallace, who could not immediately be reached for comment, has contended that he is playing David in a scenario against Goliath online services. He has argued that many of the people on the Cyber Promotions mailing list see his mail as a service. In fact, a page on the Cyber site publishes letters from readers who back him against the onslaught of antispammers.
Some argue that junk email is the only way small businesses can compete with wealthy corporations that can afford elaborate Web sites and expensive publicity campaigns to promote them. Wallace also has said that he has a legal right to send out mass email.
So far, his arguments have fallen on deaf ears in court. A federal court judge, siding with America Online, ruled that Cyber Promotions does not have a First Amendment right to send out junk email.
The same judge--U.S. District Judge Charles Weiner of Pennsylvania--ruled in November against Cyber Promotions when the company contended that an AOL move to block Cyber email violated federal antitrust laws. The judge denied the company's request for a temporary restraining order.