Some of you may remember that in the first few days after moving TidBITS Talk to Web Crossing, a couple of pieces of spam got through to the list before I figured out all the different vulnerabilities and shut it down. As a result of those mistakes and mistakes on the part of SpamCop subscribers, 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 one 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," spam's not exactly what I came to tell you about.

http://www.arlo.net/lyrics/alices.shtml

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 the list down properly for a short while. Now, you would think that everyone on the list would be annoyed, and that it would end with everyone cursing the spammer. But you would be wrong.

http://web.archive.org/web/20030522143805/http://lists.freeswan.org/pipermail//design/2003-March/004535.html

Since the FreeS/WAN list is archived on the Web, Rolex (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 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.

http://www.chillingeffects.org/trademark/notice.cgi?NoticeID=1454

The site maintaining the FreeS/WAN list archives is down at the moment, 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. As the FAQ entries below state, the courts have universally ruled that information service providers are not liable for statements made by third parties.

http://www.chillingeffects.org/trademark/question.cgi?QuestionID=663 http://www.chillingeffects.org/trademark/question.cgi?QuestionID=314

In the end, to Rolex, and even more to the law firm of Gibney, Anthony & Flaherty, LLP, I would merely 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).

http://www.risingsonrecords.com/detail.php?item=15