Media3 Technologies, LLC v. Mail Abuse Prevention Sys., LLC, 2001 WL 92389, 2001 US Dist. LEXIS 1310 (D. Mass. 2001).
Media3, a Web hosting company owns 42 “Class C network address blocks, each capable of handling about 254 Web site addresses.” Before agreeing to host a Web site, Media3 “follows the standard industry practice of requiring its customers to sign an Acceptable Use Policy for conducting business on the Internet. This policy contains provisions that are standard in the industry, including an ‘anti-spam’ provision.” However, Media3 policy did not prohibit its hosted Web sites from providing other services that could be used by a spammer; these include sales of email address lists and programs that can “harvest” similar lists from the Internet. However, only a few Media3 customers do this.
MAPS is a non-profit Internet service provider based in California with the stated purpose of combatting spam. It does this through its “Real-time Blackhole List,” a list of Web sites that, MAPS concludes, send or support sending spam. A Web site that gets on MAPS's list is generally blocked by subscribers to the MAPS list from sending any email to the subscriber's system.
In May 2000, MAPS learned that Media3 was hosting ten “spamming” Web sites on one of its Class C networks, and told Media3 to stop those activities, or it would blacklist all Web sites on that Class C network. Media3 refused, and the whole network was blacklisted. In October and November a similar situation occurred; MAPS added five more networks to its blacklist. “At present, six class C networks. Containing over 1500 Web sites hosted by Media3, remain on MAPS's blackhole list.”
Trial Court Proceedings
Media3 sued under the Massachusetts long-arm statute, M.G.L. Ch. 233A, § 3, which, as the trial judge noted, “has been interpreted aggressively; Massachusetts exercises jurisdiction over a wide range of people, some of whom appear, at first blush, to have minor contacts with the Commonwealth. . . . I conclude that this court has personal jurisdiction over MAPS. . . .”
The court noted that there were at least six email and telecommunications between the two parties which form the basis of plaintiff's unfair practices claim and possibly its interference with business relations claim under subsection (a) of chapter 233A, § 3. The court ruled that MAPS' sending allegedly defamatory messages to Massachusetts was sufficient for jurisdiction under subsection (c). Subsection (d) establishes jurisdiction when a tort is committed in Massachusetts by acts committed elsewhere; MAPS solicited funds in Massachusetts, and has downloaded, for a fee, the entire Blackhole List to at least three Massachusetts companies.
However, continued the judge, a preliminary injunction is not appropriate because there was no business defamation — MAPS statement that Media3 was “spam-friendly” was true. Further, Media3 had not demonstrated any actual or imminent loss of business by including non-spamming Web sites on its list. And there is a “serious question whether MAPS motive or means were intentional and culpable. As to the unfair practices claim under Massachusetts G.L. Chapter 93A, the state's version of Section 5 of the FTC Act, “[t]here are serious questions whether MAPS behavior constitutes ‘sharp practices' . . . as well as whether MAPS's actions occurred ‘primarily and substantially’ in Massachusetts or involved ‘commercial activity’ by MAPS.”