FC: Is "321 Studios," challenging the DMCA, truly a spammer?

[Declan McCullagh <declan () well com>]

I'm not the only person to report spam advertising a 321 Studios product: 
It seems to be reasonably widespread. Robert Moore might want to pay more 
attention to what his affiliates are doing before (apparently) rewarding 
them for antisocial behavior.

Previous Politech message:

"'321 Studios' that filed anti-DMCA lawsuit is a spammer"
http://www.politechbot.com/p-03442.html

And, coincidentally:

"Dmitry Sklyarov, spamware author? Elcomsoft sells email harvester"
http://www.politechbot.com/p-02361.html

-Declan

---

Subject: RE: "321 Studios" that filed anti-DMCA lawsuit is a spammer
Date: Wed, 24 Apr 2002 18:45:00 -0400
From: "Claburn, Thomas" <Thomas_Claburn () ziffdavis com>
To: <declan () well com>

Declan,
I just spoke with Robert Moore, president of 321 Studios, about whether
his company spammed, an allegation that has also appeared on
slashdot.org.

He denied that his company spammed. However, he acknowledged that some
affiliates (presumably to boost their commissions) had sent out spam
pitching DVD Copy Plus. He says this is contrary to the terms of the
affiliate agreement, though prohibitions against spamming aren't
explicitly spelled out.

https://secure.321studio.com/solo/affiliate/network_agreement.htm

Interestingly, he also stated that some spam had been sent out by a
competitor with the intention of harming his business (by generating
ill-will and the misdirected ire of spam vigilantes). He sent me a
report from the spam sleuths at Blighty Consulting to support his
contention. Having seen the report (and having corresponded with the
investigator for a previous story), I'm convinced.

Regarding Virtumundo, the company behind the supposed spam below: I
spoke with someone there a few weeks ago and he insisted his company
requires that clients supply only lists of consenting email recipients.
How well is this policy adhered to? I don't know. Certainly a lot of
people unwittingly opt-in (fall-in?) to marketing email as a result of
agreeing to a privacy policy that only a publicist could love.

Regards,

Thomas Claburn, Senior Editor
Ziff Davis Smart Business Magazine
50 Beale Street, 13th Floor, San Francisco, CA 94105
http://www.smartbusinessmag.com
http://www.lot49.com

---

Date: Wed, 24 Apr 2002 09:13:41 -0700
From: Troy Davis <troy () nack net>
To: Declan McCullagh <declan () well com>
Cc: politech () politechbot com, abuse () exodus net
Subject: Re: FC: "321 Studios" that filed anti-DMCA lawsuit is a spammer

> From: 321 Studio Software <UBurnYourOwnDVDs () vmadmin com>

The company they're using, vmadmin.com/virtumundo.com, is a total opt-out
spamhouse.  I believe they operate a collection of sites just so they can
lie about where their addresses come from.  Virtumunto flat-out lies about
the source of their addresses:

>    You received this email because you signed up at one of Virtumundo's
>    websites (see the "Properties" listed at http://www.virtumundo.com) or
>    you signed up with a party that has contracted with Virtumundo. To

I've spent an hour on the phone and many emails trying to get Exodus to
enforce their AUP and shut virtumundo's port off, with little success.  We
acquired a company that has a six-figure monthly contract with Exodus,
and it will be a pleasure to move out the minute it expires.  Spam-friendly
bastards.

Troy

---

From: "Allen Smith" <easmith () beatrice rutgers edu>
Date: Wed, 24 Apr 2002 12:01:15 -0400
To: Declan McCullagh <declan () well com>
Subject: Re: FC: "321 Studios" that filed anti-DMCA lawsuit is a spammer

On Apr 24, 11:53am, Declan McCullagh wrote:
> Prevoius Politech message:
>
> "Another DMCA suit: DVD-copying firm sues for right to sell product"
> http://www.politechbot.com/p-03435.html
>
> Other folks have mentioned getting spam from them; this is the first
> one that I bothered to save. It's tempting to wonder if they view the
> lawsuit as not so much an anti-DMCA vehicle as a way to get publicity
> for their product. Better than spamming, I guess, (not that they've
> stopped) unless they mount a weak challenge they set a terrible
> precedent.

I fear that about the same is true of Elcomsoft. While I'm not aware of them
doing spamming themselves, they're well-known for selling email-address
harvesting programs and other spamware - see http://www.spamsites.org.

        -Allen

> -------------------------------------------------------------------------
> Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org
> -------------------------------------------------------------------------

P.S. Speaking as a geneticist with an interest in this area (and a
preference for working in the US) - and also as the son of someone with a
brain injury that's likely to cause Alzheimer's - thanks!

--
Allen Smith                     http://cesario.rutgers.edu/easmith/
September 11, 2001              A Day That Shall Live In Infamy II
"They that can give up essential liberty to obtain a little temporary
safety deserve neither liberty nor safety." - Benjamin Franklin

---

Date: Wed, 24 Apr 2002 12:26:07 -0400
To: declan () well com
From: Doug Isenberg <disenberg () GigaLaw com>
Subject: Re: FC: "321 Studios" that filed anti-DMCA lawsuit is a spammer

Declan:

	It is not clear from the e-mail you forwarded whether 321 Studios should 
indeed be labeled a "spammer."  It appears as if the e-mail did not contain 
a misleading subject line or other information and that it did contain a 
valid reply address as well as a purported means of 
unsubscribing.  According to a statement from Virtumundo (the company that 
apparently sent the e-mail on 321 Studios' behalf), "We obtain email 
addresses and personal information voluntarily from visitors to our sites, 
and we disclose to such visitors that we will use their email addresses to 
provide promotional offers to them."  Could it be that you provided your 
e-mail address to one of Virtumundo's sites?  On the other hand, it appears 
as if the company does not have a _double_ opt-in process for collecting 
e-mail addresses, so it could be that someone submitted your e-mail address 
without your permission.

	In any event, as this issue shows, one of the significant difficulties in 
legal attempts to control spam lies simply in defining what "spam" is.  See 
http://www.gigalaw.com/articles/email-spam.html

Doug Isenberg, Esq.
Editor & Publisher, GigaLaw.com (http://www.GigaLaw.com)
FREE daily Internet law news via e-mail!  Subscribe at 
http://www.GigaLaw.com/news

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