Electronic greeting cards, Microsoft, and the law of spam.
By Erik J. Heels
First published 4/1/1999; Student Lawyer magazine, “Online” column; publisher: American Bar Association
You’ve Got Mail
AOL recently purchased Netscape, and the current antitrust suit against Microsoft is now irrelevant. If Microsoft is ordered to “unbundle” Internet Explorer from Windows, it just won’t matter. Because AOL is not interested in developing or selling Netscape, it is interested in selling products and services to the millions of users who call http://www.aol.com and http://www.netscape.com home. That the $5.2 billion dollar sale of Netscape occurred validates Microsoft’s claims that browser business is alive and well. It also makes the government’s anticompetitive arguments more than a little bit tough to stick.
And so I’m forced to look for anther Internet-related lawsuit to write about. Since Microsoft is the frequent target of lawsuits, I didn’t have to look much further than a special section on Microsoft’s Web site (http://www.microsoft.com/presspass/) to figure out who’s suing who and for what.
One of the features that I’ve always liked about Eudora e-mail is its ability to filter e-mail messages based on user-defined rules. For example, if I want to always delete e-mail from certain people, I can do so. If I want to send an auto-reply message based on keywords, I can do that. Microsoft Outlook also provides this functionality. One of the features that is built in to the current beta version of Outlook is a list of predefined rules for spam (unsolicited commercial-in-nature) and adult-oriented e-mail messages. Users have the option to turn the feature on or off.
Which brings us to the case of Blue Mountain Arts v. Microsoft (Hartford House, Ltd. v. Microsoft Corp., CV778550 (Santa Clara Supr. Ct. 12/21/98)). Blue Mountain Arts (http://www.bluemountain.com/) lets users create and customize “electronic greeting cards,” which are temporary customized Web pages on Blue Mountain Web sites. The recipient of a Blue Mountain card receives an e-mail with a URL from the Blue Mountain Web site that contains the contents of their card. Once at the site, users may be exposed to ads for flowers and the like.
The problem, according to Blue Mountain, is that its e-mail messages are being caught by Microsoft’s predefined “spam” rules, and for those users who turn this feature on, their e-mail messages are not getting through. The problem may be part of several Microsoft e-mail programs, including Outlook and Internet Explorer.
I signed up for one of these electronic greeting cards, and the notice I received (as recipient) looked like the following:
X-Sender: firstname.lastname@example.org (Erik J Heels - as entered by sender) From: email@example.com (Erik J Heels) Date: Sun, 24 Jan 99 12:38:25 -00800 (PST) To: firstname.lastname@example.org (Erik J Heels) Subject: Groundhogs Day - from Erik J Heels Guess what! You have just received an animated greeting card from Erik J Heels You'll see the personal greeting by using the following Web location. http://www1.bluemountain.com/cards/box5943u/dti5wbfssbikim.htm (Your greeting card will be available for the next 60 days) There is no charge for this service! :) HAVE a good day and have fun! ____________________________________________________________ Accessing your card indicates your agreement with our Website Rules posted at the bottom of the following Web location: (You're welcome to send a card at no charge to someone at this location) http://www1.bluemountain.com
I clicked on the above URL and was treated to an animated Groundhog’s Day card, complete with midi music. Rather cute. And a decent business model too. There is no cost to send or receive the card, and there is no third-party advertising in the e-mail message. The only advertisements I recall seeing were after I had already sent my card.
So if Blue Mountain’s business model is based on people visiting its site, sending cards, and then buying additional services from third-party advertisers, I can see why they’d be upset if their e-mail messages weren’t getting through.
In the complaint (http://www1.bluemountain.com/home/ImportantNotice.html), Blue Mountain alleged 1) violation of California business and professions code, 2) common law unfair competition, 3) intentional interference with contractual relations, 4) intentional interference with prospective business advantage, 5) negligent interference with prospective business advantage, 6) trade libel, and 7) unjust enrichment. Quite a mouthful.
There are many interesting things about this lawsuit. One of them is the fact that Blue Mountain’s problems started at about the same time when Microsoft started offering its own electronic greeting card service (http://insider.msn.com/greetings/). When I sent myself a card with Microsoft’s service, I was not presented with any third-party advertising, but I was encouraged to visit other Microsoft services, including MSN Shopping, MSN Web Communities, and MSN Gaming Zone. So the business model is the same, just that Microsoft is trying to get click-throughs to its own sites, and Blue Mountain is trying to get click-throughs to third-party advertisers.
Here’s what my e-mail notification from Microsoft looked like:
From: email@example.com Date: 24 Jan 1999 13:16:37 -0800 Subject: A greeting card for you from Erik J. Heels To: firstname.lastname@example.org Erik J. Heels has sent you a greeting card! To pick up your card at MSN.COM, click the link below, or copy and paste the URL into the address bar on your browser. If you copy and paste the URL, make sure you include all the characters below, or the card won't work. HTTP://insider.msn.com/greetings/ECards-010699/showcard.asp?cardID =16&CkSm=148&mF=FsjlK%2FIFfmt%3A5080&mM=iffmtAsfetusffu%2Fdpn%3A&t M=iffmtAsfetusffu%2Fdpn%3A&Msg=BCBTuvefouMbxzfs%28Pomjof%28Dpmvno% 3A21408291 If you have any trouble picking up your card, please send an e-mail to mailto:email@example.com. If you'd like to send your own free e-mail greetings, visit MSN.COM e-cards at http://insider.msn.com/greetings/.
Note that both the Blue Mountain card and the Microsoft card were sent with the “From:” field forced to my e-mail address. Blue Mountain included the “X-Sender:” field to show who actually send the card, Microsoft did not. This may be the feature of these e-mail messages that causes them to be treated as junk e-mail.
All of this also occurred in the Nov/Dec 1999 timeframe. The holiday season is not exactly the time to have problems with e-mail delivery if you’re in the electronic greeting card business.
The relief requested by Blue Mountain included injunctive relief preventing Microsoft from distributing software with the offending e-mail filters in place. A temporary restraining order (TRO) issued in this case, and that required, among other things, that Microsoft provide Blue Mountain with information that would allow Blue Mountain to configure its e-mail so that it would not be flagged as “spam” by Microsoft’s filters. At publication time, the trial was still pending.
Microsoft’s side of the story is presented at its Web site (http://www.microsoft.com/presspass/bluemt/). In is memorandum opposing the TRO, Microsoft starts of with a section entitled “facts” which contains the following statement: “Microsoft’s E-Mail Filter Seeks to Solve the Problem of Junk E-Mail.” Ambitious – and perhaps a bit paternalistic, but I digress. One of the arguments that Microsoft makes is that its filters also flag Microsoft’s own electronic greeting card e-mail notifications as junk e-mail. A rather interesting argument. Let’s see, who stands to suffer more from the wholesale blocking of this sort of e-mail. Blue Mountain, whose bread and butter is its electronic greeting card business? Or Microsoft, for whom electronic greeting cards represent a small percentage of its overall business? This is not so much an argument as it is an admission. No wonder the TRO issued.
Another interesting point about this case is that the e-mail filters are included in the freely distributed beta versions of Microsoft’s OutlookExpress software. By requesting an injunction, Blue Mountain is asking that Microsoft be prevented from distributing this beta software. For its part, Microsoft has provided to Blue Mountain the information required to prevent Blue Mountain’s e-mail messages from being treated as spam.
So who should have to fix this problem? Should Microsoft have to change its filters? Or should Blue Mountain have to changes its messages? Beta software or not, it is clear from the legal documents on Microsoft’s site that Microsoft caused the current problem. Its also clear that it would be easier for Blue Mountain to remedy the problem by changing its e-mail messages that for Microsoft to change its software. But if Blue Mountain did this, who is to say that the released version of Microsoft’s e-mail software would not reintroduce the problem? Should predefined filters be available at all? Should a specification be published that defines what Microsoft’s algorithms look for? Or would this defeat the purpose of junk e-mail filters altogether?
I dislike junk e-mail as much as anyone, but I have developed my own rules for filtering out the junk. I don’t want or need Microsoft doing it for me. And Microsoft’s argument that its own cards, Blue Mountain’s, and Hallmark’s are all affected by the filters sounds more like justification for Hallmark to join the suit against Microsoft than an argument for dismissing Blue Mountain’s suit.
Keep your eyes on this case. Everybody and his cousin is trying to prevent – either by legislation or programming – junk e-mail. At the same time, companies, including Microsoft, are trying to drive users to their Web sites via e-mail (including electronic greeting cards). You’ve got mail – but not for long!