Fighting spam with poetry and lawyers

Rarely does Buzz root for the guys filing the lawsuits.

And never – at least not that I can recall – have I used the word “unique” to describe anything. (It’s considered presumptuous in my profession, unless you’re writing about snowflakes.)

Today, let’s get crazy and ignore both rules.

Attorneys fighting the good fight for an antispam start-up called Habeas recently dropped lawsuits on five individuals and companies . The suits accuse the five of infringing on a Habeas trademark and/or breaching their contracts with the company.

What do such legalisms have to do with spam?

Habeas sells a software-and-service package called Sender Warranted E-mail (SWE) that is designed primarily to address the growing problem of overeager spam filters gobbling up legitimate e-mail sent by legitimate businesses. A founder of a different antispam start-up recently told me he had counted no less than 400 antispam products and services out there in the market . . . before giving up the search. Near as I can tell, Habeas is unique among them. (My gosh, I typed that word and not a bolt of lightning has descended.)

As those who have read about the company know, what makes Habeas unique is that it relies on well-established trademark law – and poetry, of all things – to take on spammers who have proven largely impervious to other legal deterrents and technological measures such as filtering, blacklists and white lists.

In a nutshell, SWE provides legitimate e-mail senders with a nine-line “warrant mark” – the first three lines of which are a haiku – that are inserted into the header of every message, or at least every message that might be mistaken for spam. Presence of the warrant mark signifies that the message is not spam, so ISPs and individuals – who pay nothing for the privilege – can let it pass through their spam defenses. SWE costs $499 a year for corporations and a penny per message for bulk e-mail companies, up to a maximum of $3,000 per month.

Why a poem, you ask.

“Copyright does not protect names, titles, slogans or short phrases; it does protect poetry. Further, there is a long tradition of geek haiku,” explains the company’s exhaustive FAQ section.

The legal fun starts when a Habeas customer gets caught sending spam or someone hijacks the trademark in an attempt to fool filters. Habeas promises to sue every such violator.

“When we go to court, the issue really isn’t about spam,” says Habeas CEO Anne Mitchell. That’s a key point in terms of the company’s business strategy, she says. Whereas laws governing spam are muddled and unproven, every judge in the U.S. is comfortable enforcing trademark law.

But aren’t they going to have trouble taking this haiku business seriously?

“Lay people may not get at first blush why this has some really serious teeth, in part because it’s a cute little friendly haiku,” Mitchell says. “However, it’s pretty easy to get them to understand that there’s also a cute little friendly mouse named Mickey, and Lord help you if you put him on your letterhead.”

That explanation works for me.

What remains to be seen is how this legal theory works in real life. While the alleged spammers Habeas is suing conceivably could face fines of up to $1 million, the company says, Habeas itself has even more at stake in these initial cases: its very existence.

Win a string of lawsuits, collect a string of judgments, and Habeas might really be on to something.

Lose and they’ll be Habeas corpses.

Comments – in haiku or otherwise – should be sent to buzz@nww.com.