Spire Vision Holdings Inc. et al
Spire Vision Holdings Inc. and related companies (Caivis Acquisition Corp. II, Caivis Acquisition Corp. III, XL Marketing Corp., Spire Vision LLC, ProAdvertisers LLC, Prime Advertisers LLC, MediActivate LLC, ConnectionCentrals, and SilverInteractive) supposedly operate an advertising network – CommissionWizard.com – connecting third-party advertisers with third-party publishers/affiliates. The Spire Vision companies take great pains to hide the fact that they send spams themselves... using fake company names (or at any rate, company names not registered with the appropriate secretaries of state) at commercial mailbox stores in other states. Spire Vision had the opportunity to resolve my clients' claims on behalf of themselves and all of their advertisers, but chose not to take it. Spire Vision then sued my clients in two separate lawsuits for declaratory relief that the emails at issue aren't spams, and even if they are spams, they're truthful spams. Their legal arguments are meritless, and their purported opt-in records are demonstrably false. So far, there's been a lot of bickering about Plaintiffs' false proofs of services, mutual defaults, and untimely filings.
In one of the lawsuits, one of Spire Vision's clients – Davison Design & Development Inc. – signed on as the first-named Plaintiff. Davison supposedly provides "invention marketing" services, but appears to not actually do most of the important steps in new product development, and certainly not "successfully," if "successfully" is defined to mean "making money." Davison's website includes a single, tiny light-blue-on-dark-blue link to a Court Ordered Disclosure Statement that indicates that 99.999% (as of Feb. 23, 2012) of Davison's income comes from up-front fees paid by would-be inventors, as opposed to royalties on licensing deals... which means that Davison's clients' inventions are not actually being sold. Comparing current with past versions of the disclosure statement also indicates that everyone who hired Davison in 2011 lost money.
Other Spire Vision advertisers include:
Accelerated Performance Channel Management LLC
(APCM LLC) dba AlmightyBible-Promotions.com of Los Angeles,
Tucows (Northern District of California and Ninth Circuit)
In a story related to the AdultActionCam.com lawsuit, my attorney sent a demand letter to Tucows – which provides private registration for the domain names adultactioncam.com and adultactioncash.com through ContactPrivacy.com, which means that Tucows becomes the registRANT as well as the registRAR, and it licensed use of the domain name back to the spammer. Pursuant to the ICANN Registrar Accreditation Agreement, a registrant who refuses to promptly provide the identity of the licensee upon receipt of evidence of actionable harm shall accept all liability. Even after judgment was entered, and even after I provided evidence of more spams, Tucows – specifically, Paul Karkas – still refused to provide me with the identity of its licensee. So I filed a complaint against Tucows in the Superior Court of San Francisco County.
Tucows removed from California to federal court, then filed a Motion to Dismiss. Here's my Opposition. Here's Tucows' Reply. The District Court ruled against me.
I appealed to the Ninth Circuit. Basically, the argument is this: Nothing in the ICANN Registrar Accreditation Agreement immunizes Registered Name Holders from liability, but even if it did, the specific requirements of ¶ 3.7.7 and ¶ 126.96.36.199 control over the general "no third party beneficiaries" language. Moreover, Tucows' interpretation disregards the plain language of the RAA, logic (it would make those provisions unenforceable by anyone), ICANN's own position on the subject, industry standards, and public policy.
Click here to read my Opening Brief. Click here to read Tucows' Answering Brief. Click here to read my Reply Brief.
The Panel of the Ninth Circuit ruled against me in this Order. The Panel noted my "novel and creative approach" but said I'm not a 3rd party beneficiary. In my admittedly biased opinion, the Panel was wrong based on the plain language of the RAA, and the Panel didn't realize what the impact of its ruling would be. Now, anyone can do bad things on the Internet – not just spamming – and hide behind a privately-registered domain name. The privacy service does not have to identify its customer, and the privacy service is not liable for the harm either. Somehow, I'm pretty sure that's not what ICANN intended.
I filed a Petition for En Banc Review, but the Ninth Circuit declined the full-court review.
There is a silver lining though, and it's a pretty good one. Tucows may have avoided liability for now, but it may have created a serious problem for all private registration services, and here's why. If parties harmed by wrongful use of privately-registered domain names don't have any benefits under the RAA, then they don't have any obligations either. That means I no longer have to ask the privacy service for the identity of its licensee wrongfully-using a domain name, and the privacy service can no longer avoid liability merely by identifying its licensee. So I'm going to sue privacy services directly from now on as the actual legal owner of the wrongfully-used domain names... Let the privacy services make their own indemnification/breach of contract claims against their own customers.
(Northern District of California)
I am represented by Timothy Walton, a California attorney (in Aptos) with extensive experience in the spam and technology areas, who shares my passion for fighting spam. www.timothywalton.com
© 2002-present, Daniel Balsam