Pink contract?
MonsterHut said it sends targeted, opt-in email campaigns for clients such as OverStock.com, ProFlowers.com, Ourhouse.com and Giftbaskets.com.
The company says it is not a spammer, partly because it uses opt-in email lists and legitimate return addresses on messages--something bulk emailers targeted by state anti-spam laws typically do not do.
Despite claims to legitimacy, MonsterHut's wedge in court appears to have come from a signed addendum to PaeTec's acceptable-use policy. The document, submitted in court filings, acknowledged that MonsterHut would send "targeted" emails and that PaeTec may receive up to 2 percent of the volume of emails sent back in complaints from consumers. In other words, if MonsterHut sent out 1,000 emails, only 20 people could complain. In the event complaints amounted to more than 2 percent, PaeTec could terminate the agreement. The company also agreed to forward those complaints to MonsterHut.
For its part, PaeTec says MonsterHut violated the terms of its contract.
"We knew they were going to send email, but we did not know they were going to send unsolicited commercial email," said John Messenger, vice president and associate general counsel for PaeTec. "They told us that there might be complaints from the email, but the language we agreed to doesn't give them a license to spam."
PaeTec's acceptable-use policy prohibits subscribers from sending unsolicited bulk email. Messenger said that anything contained in the addendum does not modify that agreement.
The controversy, however, doesn't end there. PaeTec is a reseller of Verio's services, and the deal with MonsterHut has drawn the attention of that ISP, which also has an acceptable-use policy banning spam.
"Our understanding is that PaeTec didn't agree to any spam arrangement or 2 percent levels," said a representative of Verio. "Our acceptable-use policy applies to any company that they sign on, and Verio reserves the right to shut down sites if we feel there is unsolicited email going out."
The company is reviewing court documents.
In a bid to have the contract voided, PaeTec is making a plea to subscribers to sign a legal document charging that Internet marketer MonsterHut is a sender of spam.
So far, PaeTec said it has received dozens of affidavits from consumers wanting to charge MonsterHut as a spammer. The document requires subscribers to attest that they never agreed to receive email from MonsterHut, among other points. It plans to use the documents in a court appearance in May.
"The significance of these affidavits (is they prove) that the customers didn't opt in to receive the emails from MonsterHut," said Suzanne Galbato, outside counsel for PaeTec.
John Levine, author of "The Internet for Dummies," is among those who have sent notarised affidavits to PaeTec.
Levine said he knows that MonsterHut is spamming because he hosts a handful of different domains on a network from his home and hasn't disseminated any of those addresses to marketers or Web sites.
"It's clear to me that MonsterHut scraped a bunch of contact information from the Whois database (a general register of domain owners) and is using that to send out spam," he said in an interview. "They spammed me for at least one domain that I don't host anymore."
PaeTec says it has received more than 750 complaints from subscribers about MonsterHut emails, and it has received further notification from Verio about complaints.
MonsterHut said it has received only 11 complaints from PaeTec.
But the complaints rolling into Verio can't help the situation for PaeTec.
"The terms they have given to MonsterHut are not Verio's...If Verio finds that there really is a pink contract, Verio will undoubtedly kick PaeTec out of there," said Steve Linford, an anti-spam activist with The Spamhaus Project.
