Some of you may remember that in the first few days after moving TidBITS Talk to Web Crossing, a couple of pieces of spam snuck through to the list before I figured out how to block all the different ways it could get in. As a result of those mistakes and mistakes on the part of SpamCop subscribers who reported us as spammers, we were added to the SpamCop blacklist for about two days. It was annoying and troublesome, to say the least, but at least there weren’t any lawyers involved.
Over the last few weeks in particular, I’ve noticed that the spam that Postini quarantines for me every day has changed significantly in flavor. The naughty bits have largely disappeared, to be replaced with, oddly enough, spam advertising likely fake versions of Rolex watches. The fact that spammers are flogging expensive watches to gazillions of email users is strange enough on its own. Pretty much everyone I know who wants a Rolex already has a perfectly functional watch that they like, and how many watches is any sane person likely to purchase in his or her lifetime? But, to paraphrase a line from Arlo Guthrie’s 18-minute song "Alice’s Restaurant," watches aren’t exactly what I came to tell you about.
See, it turns out that other mailing lists have suffered the same kind of problem that TidBITS Talk did during those few days, and one of these fake-Rolex spam messages made it through to the FreeS/WAN list (FreeS/WAN is an implementation of the secure tunneling IPSec technology for Linux). The next message in the FreeS/WAN list is also spam; I suspect they were reconfiguring things and failed to lock down the list properly for a short while. You would think that everyone on the list would be annoyed, and that the whole unseemly episode would end with everyone cursing the spammer. But you would be wrong.
Since the FreeS/WAN list is archived on the Web, Rolex Watch U.S.A., Inc. (remember Rolex? It’s an article about Rolex) found the post in searches for the counterfeiters of Rolex watches. It’s obvious to anyone over the age of 13 (and probably lots of people under that age) that the spam appearing in the FreeS/WAN archive is something that happened to the FreeS/WAN list, not something that the FreeS/WAN list intentionally propagated. It was an accident, and an unfortunate one at that. But obvious though this is, a group of highly paid attorneys hired by Rolex couldn’t figure this out and sent a cease-and-desist letter (undoubtedly accompanied by twenty-seven eight-by-ten colour glossy pictures with circles and arrows and a paragraph on the back of each one) to John Gilmore telling him that, as the person who registered the freeswan.org domain, he could be liable for damages up to $1,000,000 for posting content that violated the Rolex trademark, promoted counterfeiting, and diluted Rolex’s intellectual property rights. Now that’s adding injury to insult! First spam makes it through to a list you run, and then you’re threatened by lawyers because of it.
The site maintaining the FreeS/WAN list archives is currently down, so I can’t tell if John Gilmore removed the offending spam from the list archives or not, but the link I gave previously from the Web Archive shows that one way or another, that message is going to live forever, even in conjunction with the FreeS/WAN list. It’s stupid, of course, since no one other than the spammer even wanted the message to exist at all, much less be archived forever, but that’s just the way the Internet works. There’s no stuffing the spam genie back into the bottle.
So here we have some idiot lawyers sending cease-and-desist letters to completely innocent and unrelated people, presumably charging Rolex by the hour to do so and costing Rolex untold loss of good will in the process. What’s worse, it’s highly unlikely that the operator of a mailing list archive could really be held liable for allowing a spammer to post; see the FAQ entries at Chilling Effects for details.
In the end, to Rolex, and even more to the law firm of Gibney, Anthony & Flaherty, LLP, I would say this.
"Kids, we don’t like your kind, and we’re going to send your cease-and-desist letter off to the Web Archive. And friends, somewhere in the Internet, enshrined in some database, is a study in black and white of that cease-and-desist letter. And the only reason I’m writing you this article now is cause you may know somebody in a similar situation, or you may be in a similar situation, and if you’re in a situation like that there’s only one thing you can do and that’s post a note to the nearest blog, just write right in and say, ‘Counsel, you can’t get what you want with pointless strong-arm tactics.’ You know, if one person, just one person does it, they may think he’s really sick and they won’t listen. And if two people, two people do it, with trackback, they may think they’re both faggots and they won’t listen to either of them. And three people do it, three, can you imagine, three people posting a note about a similar situation on their blogs? They may think it’s an organization. And can you, can you imagine fifty people a day, I said fifty people a day posting notes about strong-arm legal tactics? And friends, they may think it’s a movement. And that’s what it is, the Rolex Spam Anti-Massacree Movement, and all you got to do to join is post a note on your blog the next time a pointless cease-and-desist letter comes around on the net."
Arlo, if you’re reading this, my apologies for mangling your verse, and everyone else, if you have so far led a benighted life that doesn’t include having heard "Alice’s Restaurant" yet, go buy the album (unfortunately not available at the iTunes Music Store yet). And to be clear, I realize there’s nothing new about these cease-and-desist letters; this one pushed my buttons because of what happened with TidBITS Talk and because of all the Rolex spam filling my Postini quarantine.