Press Release

Hypertouch Sues BobVila.com in Nation's First CAN-SPAM Case

FOSTER CITY, Calif. -- The operator of home improvement guru Bob Vila's website today became the nation's first target of the new federal anti-spam law, according to attorney John L. Fallat.

Fallat filed a lawsuit in federal court on behalf of Foster City-based Internet Service Provider Hypertouch, Inc., alleging Sacramento-based BlueStream Media and Boston-based BVWebTies LLC, owner of BobVila.com, violated the Federal CAN-SPAM Act of 2003 by sending Hypertouch and its customers unwanted and unsolicited electronic mail advertisements for Bob Vila's "Home Again Newsletter."

"The CAN-SPAM Act provides only the most minimal protections to the public," says Hypertouch President and Founder Joe Wagner. "But BobVila.com and BlueStream Media failed to observe even those." The suit alleges that the defendants sent spam email advertisements with fraudulent headers and no legally required physical address. They also sent email to randomly generated and harvested addresses, even to addresses that had been submitted to the "opted-out" links of other spam.

"Most Internet Service Providers (ISPs) advise their customers to never reply to a spam in an attempt to 'opt-out' because that will only confirm for the spammer that an email address is 'live,'" said Wagner. "BobVila.com and BlueStream Media's actions graphically show how harmful the CAN-SPAM Act is by requiring recipients to reply to the spam they receive."

"While ultimately we feel that the CAN-SPAM is an open license to spam with very little protection for the public, we will zealously use what few protections are available to punish unrepentant spammers," said Fallat. "We want to send a strong message to other would-be spammers, and the companies that hire them."

"BobVila.com even refused to assure Hypertouch that they would never use BlueStream Media in the future," Wagner added. "I cannot understand why any legitimate business would run the tremendous legal and public relations risk in harassing millions of people with spam."

Anyone who has information about the marketing and/or business practices of BobVila.com or BlueStream Media is invited to contact attorney John Fallat at 415-457-3773 or email him at jfallat@fallat.com. Additional information is available at http://legal.hypertouch.com.

Updates will be posted below, as they occur...

• We are process of settling. The case has been dismissed, without prejudice, but we can reopen it if things fall through.
• (Update: December 30, 2005) As part of the preliminary settlement agrement signed after mediation, the parties agreed to issue the following press release:

  Hypertouch, Inc., BlueStream Media and BVWebTies (BobVila.com) have resolved the nation's first lawsuit filed under the CAN-SPAM Act, filed by Hypertouch against BlueStream and BVWebTies for emails sent by BlueStream on BVWebTies' behalf. The parties continue to disagree as to the merits of the lawsuit, although all parties agree that BobVila.com was informed by BlueStream that BlueStream did not spam."

  BVWebTies has apparently posted on their website a bit of further commentary:

  "Further, the parties' acknowledgment that BobVila.com was told by BlueStream that BlueStream did not spam is inconsistent with the claim that BobVila.com violated the CAN-SPAM Act. Thus, BobVila.com remains convinced it has operated in full compliance with the CAN-SPAM Act."

  Hypertouch's response to that is perhaps best expressed by: "Well, whatever..." Nearly every spammer for hire will tell their potential clients "We do not spam..." and yet the CAN-SPAM Act can hold the merchant responsible for the acts their hired spammer. BlueStream itself remains listed with Spamhaus. As for BlueStream's own claim on their website that:

  "BlueStream was not required to change any email marketing practices to resolve this lawsuit and remains in full compliance with the CAN-SPAM act.

  
  Again: "Well, whatever..." The preliminary settlement agreement requires BlueStream to "use either an actual company name or an individual name and an actual physical postal address in registering domain names." The BobVila.com spam BlueStream sent used fake company names, fake addresses, and false headers -- so it's not clear how BlueStream makes their press release claims with a straight face.

• The complaint filed U.S. District Court, Northern District of California, Case No. C 04-00880 MMC:
  In HTML format, with exhibits; In Microsoft Word format; In PDF format; In RTF format.
• Press: Barron's, Remodeling Magazine, Wired (1, 2), Slashdot, The Register, Washington Post
  (AP story also in USA Today, Los Angeles Times , Chicago Tribune, San Jose Mercury News, Miami Herald, Informationweek, etc.), New York Times (and News.com), Internet News (1, 2), Media Post, Technology News, DMNews.com.
• BobVila.com has posted a short statement about the lawsuit. BlueStreamMedia.com has posted a press release.
• In brief response to BlueStream Media's release which reads in part: "Every marketing message that has left BlueStream Media mail servers since Jan 1st, 2004 has a working remove link, a link back to BlueStream Media's corporate website, a valid physical address and a corporate telephone number..." Hypertouch invites all to examine the complaint exhibits, including Exhibit 1's copy of the spam, and Exhibit 2's copy of the domain registration made before it had been recently altered.
• BVWebTies and BlueStream Media have filed responses with the court.
• Court dates (old):

  November 22, 2004	FURTHER STATUS CONFERENCE STATEMENT DUE
  December 3, 2004	Further Status Conference
  January 10, 2005	Non-expert Discovery Cutoff
  January 31, 2005	Expert Discovery Cutoff
  January 31, 2005	Lead Trial counsel meet and confer deadline
  March 15, 2005 (3 p.m.)	Pre-Trial Conference date
  March 28, 2005	Jury Trial of 1 to 3 days