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AUG 27, 2004

Spam Suspects:
Midwest Hydroponic and Home Brewing Supplies Inc. dba www.Brew-Winemaking.com

- $100,000.00 USD in statutory damages (accounted for to date)

Case Facts:

  Total number of spams sent: 4   CAN-SPAM Damages:TBA
  Number of days (776.2(c)): 4   15 O.S. 776.1 et sec: $100,000.00
  Number of days (776.7(c)): 0   Other Damages: 0.00
  Total distinct days: 4   Total Damages: $100,000.00

01/19/2005 - Motion to Withdraw as Attorney of Record - Brandon P. Long -- Bye bye Brandon
12/28/2004 - Defendant’s Answer to Plaintiff’s First Set of Interrogatories
12/23/2004 - Plaintiff’s Answer to Defendant’s First Set of Interrogatories
11/23/2004 - Plaintiff’s First Set of Interrogatories
11/23/2004 - Plaintiff’s First Set Request for Production of Documents
11/23/2004 - Defendant’s First Set of Interrogatories
11/23/2004 - Entry of Appearance by attorney: Brandon P. Long (Welcome aboard Brandon!)
10/12/2004 - Answer to Plaintiff’s Petition - Deny everything, admit nothing.
09/20/2004 - Entry of Appearance by attorney: Victor F. Albert Defendant now has until October 12, 2004 to further plead.

NEWSFLASH:

Defendant’s answers to Plaintiff’s First Set of Interrogatories would seem to validate the Rules of Spam as established in the news.admin.net-abuse.email newsgroup. It would appear that the Defendant is either suffering from amnesia or he is just flat out lying. Could it be the latter? Could it be that he is just validating:



During a recorded telephone call - (Transcript available - See page 2, lines 23 and 24 as well as page 4 lines 10-22), Defendant’s employees “Paul” and “Colin” verified that the “Make Beer and Wine at Home” spam that was sent out was indeed theirs. Knowing full well that he sent or caused to be sent the spam which is the subject of this lawsuit, Mr. Dave Turbenson actually has the balls to make the following statement under oath:
Defendant did not send e-mails to Plaintiff and has no knowledge or evidence of any messages sent by Defendant to Plaintiff.
Hmmmmm.... This would seem to directly contradict what Paul told me on page 2, lines 23 and 24 of said transcript.

Riddle me this: Why would Mr. Turbenson himself apologize to me for the sending of said email if he “had no knowledge of same?” Take a look at page 2 line 25 and 26 of this transcript of a recorded telephone call that took place August 18 2004 at 12:37 pm. He states:
Turby: Yeah, I mean, as I mentioned, I - I apologize if I inconvenienced you, I uh...
He can’t really claim that this unknown spammer (probably a “sister company” as Paul indicated) is all to blame for the spam when he admits that HE hasn’t done anything like that since on page 4 lines 24-26:
Turby: That’s, that’s I guess, that’s all I can do is apologize and, uh you know, obviously I haven’t done anything like that since then, I — I have uh, sorry I wasted your time.
What’s with all the apologizing if he didn’t send me any spam? Inquiring minds want to know. He again refers to “What HE was doing” here on page 5 lines 17-22:
Turby: I signed up with a company that assured me ... on their web site ... and through multiple emails ... that what I was doing was completely legal and uh, a completely viable way of marketing my product over the Internet. And, and it’s unfortunate that ...
Save it Turb. We ain’t buyin your perjured Interrogatory answers. Anyway... His answers pretty much prove the Rules of Spam. Here are the rules...

Synopsis

Lawsuit filed on August 27, 2004
Case # CJ-2004-7104

Midwest Supply is a successful business with a long history of shady, unethical and illegal advertising practices as profiled in this news story from the Star Tribune. The Defendant was also kind enough to pose for a picture for Dick Youngblood.


The spam was sent from a misleading email address that has been used in plenty of spam emails as evidenced by this Google Search.

Take a listen to this phone call - (Transcript available), where two of Turby’s employees confirm that the email in question was sent (or caused to be sent) by the within named defendant. Neither Paul or Colin, the two employees of Midwest whom I talked to knew who CVC@hotmail.com is. Paul thought it might belong to a sister company.

During this phone call - (Transcript available), the spam was identified by the defendant David Turbenson as an “Opt-In” email, however, the ending point of the transmission path, the recipient address itself, is not an opt-in address. In fact, it is an opt-out address as per the terms and conditions of the RealCart.com web site.

The email addresses websupport@realcart.com, yournamehere@spammerpayus.com, webmaster@spammerpayus.com as well as the address non-securehelp@realcart.com were never opted in to any list and therefore are misrepresentations of the transmission path destination. Both the sender and recipient email addresses are in violation of Oklahoma Statutes Title 15 Section 776.1(a)(1) which states:
§ 776.1
 A. It shall be unlawful for a person to initiate an electronic mail message that the sender knows, or has reason to know:
1. Misrepresents any information in identifying the point of origin or the transmission path of the electronic mail message;
2. Does not contain information identifying the point of origin or the transmission path of the electronic mail message; or
3. Contains false, malicious, or misleading information which purposely or negligently injures a person.
Due to forged email headers, all four spams are also in violation of Oklahoma Statutes Title 15 Section 776.6(A)(1) which states:
§ 776.6

A. It shall be unlawful for a person to initiate an electronic mail message that the sender knows, or has reason to know:

1. Falsifies electronic mail transmission information or other routing information for the unsolicited commercial electronic message; or
2. Contains false or misleading information in the subject line.
It wasn’t until after I received the Defendant’s First Set of Interrogatories that I discovered two more spams from May 9, 2004 and in my resulting investigation discovered that Oklahoma Statutes Title 15 ¨¨ 776.1-776.5 and Oklahoma Statutes Title 15 ¨¨ 776.6-776.7 are two completely different acts. 776.1-776.5 were originally known as Oklahoma House Bill No. 1410. 776.6-776.7 were originally known as Oklahoma House Bill No. 1691. All of the emails in question violate both acts.

This spam was sent to addresses that have been harvested off of the world wide web. This is an aggravated violation of the CAN-SPAM Act of 2003 which states:
Section 5(b) Aggravated Violations Relating to Commercial Electronic Mail-
 (1) Address harvesting and dictionary attacks-
  (A) IN GENERAL- It is unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message that is unlawful under subsection (a), or to assist in the origination of such message through the provision or selection of addresses to which the message will be transmitted, if such person had actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that--
   (i) the electronic mail address of the recipient was obtained using an automated means from an Internet website or proprietary online service operated by another person, and such website or online service included, at the time the address was obtained, a notice stating that the operator of such website or online service will not give, sell, or otherwise transfer addresses maintained by such website or online service to any other party for the purposes of initiating, or enabling others to initiate, electronic mail messages; or
   (ii) the electronic mail address of the recipient was obtained using an automated means that generates possible electronic mail addresses by combining names, letters, or numbers into numerous permutations.
There is no opt-out mechanism, there is no identification that the messages are advertisements or solicitations and there is no mention of a valid physical postal address of the sender, all as required by the CAN-SPAM Act of 2003 which states:
Section (5) INCLUSION OF IDENTIFIER, OPT-OUT, AND PHYSICAL ADDRESS IN COMMERCIAL ELECTRONIC MAIL- (A) It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides--

   (i) clear and conspicuous identification that the message is an advertisement or solicitation;
   (ii) clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and
   (iii) a valid physical postal address of the sender.

Liability of the Sender(s)

WebGuy Internet Solutions is the email service provider for RealCart.com WebGuy Internet Solutions meets the definition of an email service provider as defined by Oklahoma Statutes Title 15 Section 776.4(5) which states:
§ 776.4
5. "Electronic mail service provider" means any person who:

   a. is an intermediary in sending or receiving electronic mail, and
   b. provides to end-users of electronic mail services the ability to send or receive electronic mail.
WebGuy Internet Solutions has filed a lawsuit for statutory damages in the amount of $50,000.00 as provided for by Oklahoma Statutes Title 15 Section 776.2(C) which states:
§ 776.2
   C. If the injury arises from the transmission of unsolicited or commercial electronic mail messages, an injured electronic mail service provider may also recover attorneys' fees and costs and may elect, in lieu of actual damages, to recover the greater of Ten Dollars ($10.00) for each and every unsolicited commercial electronic mail message transmitted in violation of this act, or Twenty-five Thousand Dollars ($25,000.00) per day.
WebGuy Internet Solutions will file an amended petition in an additional amount of $50,000.00 as provided for by Oklahoma Statutes Title 15 Section 776.7(C) which states:
§ 776.7
   C. If the injury arises from the transmission of unsolicited or commercial electronic mail messages, an injured electronic mail service provider may also recover attorneys' fees and costs and may elect, in lieu of actual damages, to recover the greater of Ten Dollars ($10.00) for each and every unsolicited commercial electronic mail message transmitted in violation of this act, or Twenty-five Thousand Dollars ($25,000.00) per day.

The Rules Of Spam

The following was taken from this page

Rule #0: Spam is theft.

Rule #1: Spammers lie.

  • Russel’s Admonition: Always assume that there is a measurable chance that the entity you are dealing with is a spammer.
  • Sharp’s Corollary: Spammers attempt to re-define "spamming" as that which they do not do.

Rule #2: If a spammer seems to be telling the truth, see Rule #1.

  • Crissman’s Corollary: A spammer, when caught, blames his victims.

Rule #3: Spammers are stupid.

  • Angel’s Commentary: Spammers think it’s okay to steal a little bit from a lot of people.
  • Krueger’s Corollary: Spammer lies are really stupid.
    • Pickett’s Commentary: Spammer lies are boring.
  • Russell’s Corollary: Never underestimate the stupidity of spammers.
  • Spinosa’s Corollary: Spammers assume everybody is more stupid than themselves.
  • Spammer’s Standard of Discourse: Threats and intimidation trump facts and logic.

Rule #4: The natural course of a spamming business is to go bankrupt.

Rules-Keeper Shaffer’s Refrain: Spammers routinely prove the Rules of Spam are valid.



(To open any of these evidentiary files in a new window simply hold down your shift key while clicking any link below.)


-----Original Message-----
From: cvc@hotmail.com [mailto:cvc@hotmail.com]
Sent: Friday, May 14, 2004 5:55 PM
To: non-securehelp@realcart.com
Subject: Make Beer and Wine at home


Beer and Wine equipment kits starting at $49.95 to $57.95. Over 80 beer recipes and 105 award winning wine recipes to choose from.
FREE instructional video with any purchase. Check out http://www.brew-winemaking.com

These kits make great Mother's Day and Father's Day gifts.

Make your own specilaty beer or wine, just like your own Micro-Brewery or Boutique Winery. Beer and wine kits make great gifts or have your friends over to sample your own Micro Brew or hand crafted Wine! Check out http://www.brew-winemaking.com

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