From: Declan McCullagh <declan@eff.org>
Date: Mon, 9 Sep 1996 10:59:49 +0800
To: Damaged Justice <frogfarm@yakko.cs.wmich.edu>
Subject: Re: Court challenge to AOL junk-mail blocks
In-Reply-To: <199609082348.TAA04495@yakko.cs.wmich.edu>
Message-ID: <Pine.SUN.3.91.960908171220.9904E-100000@eff.org>
MIME-Version: 1.0
Content-Type: text/plain


No. A customer buys service from AOL and in doing so signs a contract 
with the company. AOL and the customer each has certain rights and 
obligations spelled out in the contract.

I confess I don't know if AOL's contract allows them to block spam. But 
in any case, spammers are not customers.

-Declan


CONTRACT - LEGAL DEFINITION

A contract, expressed or implied, is binding when six elements are present:

1.	Parties involved have the capacity to enter into a contract, i.e. 
mental capacity and requisite age, or the authority to obligate the 
institution.

2.	The contract must be based on an offer.

3.	The offer must be accepted (acceptance by a written or oral 
promise - expressed acceptance, or by performance of the task in question 
implied acceptance.

4.	The offer and acceptance must be mutual.  The key here is proof 
of a "meeting of the minds" on terms and nature of the promise.

5.	There must be performance in order for one or both parties to be 
bound by the mutually agreed terms of the contract.  (An institution 
would not be obligated to pay until the contractor performed services 
agreed upon).

6.	The contract must be for a legal purpose or it will not be binding.




On Sun, 8 Sep 1996, Damaged Justice wrote:

> > 
> > The judge did mention "status quo" in his opinion. I would hope that 
> > "status quo" would mean the ability of ISPs to offer and enforce whatever 
> > contracts they want -- including banning incoming spam -- without the 
> > intervention of the government. Unless, of course, the ISP breaks the 
> > contract, but in that case the plaintiffs should be the customers, not 
> > the spammer.
> 
> Aren't spammers customers, by definition? If so, they have just as much
> right to bring suit as any other customer. Less moral justification, yes,
> but an equal standing in the law's eyes.
> 
> --
> I let go of the law, and people become honest / I let go of economics, and
> people become prosperous / I let go of religion, and people become serene /
> I let go of all desire for the common good, and the good becomes common as
> grass.   .oOo.    [Tao Te Ching, Chapter 57, Stephen Mitchell translation]
> 


// declan@eff.org // I do not represent the EFF // declan@well.com //