On Thu, 9 Nov 2006, John Peacock wrote:
> Dean Anderson wrote:
> > Exactis V. MAPS.
>
> ...was settled out of court before any judgement, so it has no legal
> significance at all.
This isn't true. The case is not a precedent, because there was no
genuine legal dispute (which is why the lawyer was chastised), and it
was then settled out of court. But the case demonstrates the fact that
the first amendment isn't a defense to antitrust.
Second, the TRO in the case is a court order, which can be cited. (in
fact, re-reading the Cyber v AOL case just now, the just cites the lack
of a TRO or similar cases as justification for the judgement.
There are other TROs against blacklists, as you well know.
> In fact, the same argument that blocking unsolicited e-mail violates
> anti-trust law was specifically denied [10 years ago] by the U.S.
> District Court in Pennsylvania in "Cyber Promotions, Inc. v. America
> Online, Inc."[1] Additionally, in "Compuserve v. Cyber Promotions,
> Inc."[2], bulk e-mail can be considered to be trespass, subject to tort
> damages.
That isn't true, either:
"Cyber Promotions, Inc. v. America Online, Inc." 948 F.Supp. 456 (E.D.
PA 1996)
Cyber promotions first asserted that the First Amendment gave it the
right to send unsolicited spam. The court rejected this claim. Then
Cyber amended its claims to include a Sherman act claim under section 2.
Section 2 prohibits monopolies. (ie, Microsoft, ATT). The court just
ruled that AOL isn't a monopoly.
The AOL case doen't mean that blacklists aren't subject to antitrust law
as unlawful group boycotts under section 1 of the Sherman act, as cited
in the Exactis complaint. But if this were the case, the TRO's wouldn't
be granted against blacklists.
--Dean
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