Papa John's faces $250 million spam lawsuit | Hacker News Reader

Papa John's faces $250 million spam lawsuit

money.cnn.com

48 pointshornbaker45 comments

If they get fined $250 million, how are they going to be able to pay for their employees health insurance?

The price of every pizza will increase by $10.

Speaking of Pizza spam, Domino's in the UK do some sleezy things with their ordering. After entering your order information and proceeding to the delivery page you're asked to input your email, name and phone number (so they can contact you if the driver can't find your address). The form has 2 check boxes, before May 2012 this stated "Tick the boxes below if you want to receive marketing material via SMS and Email" however sometime around May 2012 they changed this to state "Tick the boxes if you do not want to receive marketing material via SMS and Email".

Any customer that has previously used Domino's pizza (probably most people that order?) has gotten so used to their form that they don't think to re-read every input. I got caught out by it and it's really really lame that they did that. Not only are they going against the conventions we all expect (tick to include, not tick to exclude) they switched it to trick customers!

I wonder if they're breaking similar laws.

I understand the immorality, but is there a basis for illegality? If I wanted to cause trouble, I would randomize the appearance of the "do not" and maybe even the syntax.

You can't go too far or the information commissioner will want a word.

Obviously that's hypothetical - the ICO is too busy to go after anyone implementing your idea.

It reminds me of one time when one local phone company decided to subscribe everyone to a new automatic answer service and everyone received a letter that if they don't wanted this new (paid) service they had to call the phone company. They lost the lawsuits.

He's going to have no choice but to pass that cost on to his customers.

He could just blame the President again and cut his abused staff's hours some more.

You got the order backwards. It's cut the hours then blame someone else.

Riight, and the consumers will keep paying that cost because there is are no other pizza restaurants in America. If only some other company could crack the pizza technology...

Wish the pizza places near me would crack it. They are either terrible, or 2 hours wages for a nice one.

SMS spam is worse than email spam since lots of people pay for each message received.

Incoming messages are still charged?

I'm waiting to see how they can blame this on employee health insurance.

Between $500 and $1500 per sms? Where's the justice in that?

It pays for the ones that got away.

$500 is the statue limit per incident of violation and $1500 is the punitive triple damage.

That's nothing compared to the $150,000 or whatever per song downloaded the RIAA was going for.

Has anyone ever been asked to pay money for downloading a song (apart from the obvious, when buying it from a store)?

Traditionally they send people scare-letters ("pre-litigation letters")^ offering a settlement for downloading. If people decided to fight it, they usually get brought to court for downloading and "making available" (distinct from uploading). "Making available" has generally been thrown out, as the ill-defined crap that it is.

""The court agrees with the great weight of authority that section 106(3) is not violated unless the defendant has actually distributed an unauthorized copy of the work to a member of the public," wrote the judge in his order. "Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder's exclusive right of distribution.""

http://news.cnet.com/8301-10784_3-9932004-7.html

So basically they sue/sued people for downloading as well as some crap they made up.

Regardless, senseless pedantry. Here is a 'fixed' statement if you are terribly bothered: "That's nothing compared to the $150,000 or whatever per song downloaded and/or 'made available' the RIAA was going for."

^ http://www-tech.mit.edu/V127/N24/riaa/letter.pdf This example pre-litigation letter uses the phrasing: "distributed (i.e., by uploading) and/or reproduced (i.e., by downloading)"

In both cases where people ended up facing such large fines, the RIAA repeatedly offered to settle for much much much smaller amounts, typically around $2-4 per song that the person was sharing.

The defendants decided to reject these offers, even though the MINIMUM POSSIBLE fine if they lost in court would be much larger than the RIAA was asking for.

Typical numbers would look something like this. The person shared a couple thousand songs, and the RIAA asked for maybe $5k. When the person refused, the RIAA would sue over around 20 of the songs, and the RIAA would have an airtight case. The best case realistic outcome for the defendant would be for the jury to award the minimum possible damages: $750/song, so the defendant would end up owing about $15k, which is about 3 times what they could have settled for.

That was their best case outcome. In reality, the jury would generally opt for something between the minimum and maximum, and so they got the big fines.

Then they would appeal. Incredibly, the RIAA would then offer again to settle for a few thousand (total--not per song). And the defendant would refuse, get another trial, and get a jury that opted for even higher up on the damage scale. Oops.

Basically, these defendants were either idiots, or they were taken advantage of by attorneys of questionable ethical judgement who put their desire to argue novel dubious copyright theories in court over the interests of their client.

Offering several thousand dollars for "several thousand songs" then ultimately only bringing up a couple dozen is complete crap. It is plain, if you can see through the legalese, what was going on. The RIAA was wielding the legal system and an asymmetric power relationship as a weapon.

You have a person sharing a few thousand songs illegally. The RIAA offers to settle for a very reasonable amount--only a few dollars a song, which is far far below what it would normally cost to license a song to make available for free, unrestricted public redistribution. (And that is the correct license to compare to, not the $1 license that one purchases to download a song and use it privately).

If the person does not accept and the RIAA sues, it would make little sense to sue over all the songs. For each song named, they have to ensure that certain formalities have been taken care of (such as copyright registration) have been taken care of for those songs, and make sure the necessary rights have been assigned to them, and they have to submit into evidence documentation that proves all of this. They also have to show that each song being shared is really the song they are suing over (as opposed to a misnamed file of some other song, for instance).

Why go to all that effort, when suing over a dozen or two songs is sufficient to put the minimal damages at more than they have already indicated they are willing to accept to settle?

I don't see how this is using the legal system "as a weapon". It's using it exactly how it is supposed to be used--someone violates their rights, they make a very reasonable offer to settle the matter out of court, the person refuses, and then they take the person to court.

They, with extensive legal resources, go after individuals, with next to no legal resources, threatening massive lawsuits for a dozen or so songs, or you can pay them several thousand dollars, "for many many songs", to make them go away.

If you don't see the problem there by yourself, I don't think I can help you. It should be self-evident.

Following the letter of the law does not absolve you from ethical wrongdoing.

It is hard to see how this comment wouldn't be arguing that the RIAA should, if their concerns are bona fide, be suing for millions of dollars instead of single-digit thousands. All the empirical evidence available to you suggests that when the RIAA takes someone to court who refuses to settle, they are likely to be awarded 5- and 6- figure judgements. Set against that fact, it is very hard to argue that they are being malicious when they offer a $5000 settlement.

If you are mugged in the city of Chicago, or if your lawnmower is stolen from your garage, or your house broken into, the chances are very good that the party who harmed you has far fewer resources than you do; in fact, your economic relationship to your assailant is likely to be comparably dramatic to the relationship between the RIAA and a defendant (it is probably more likely that you could start a multimillion dollar business this year than that a mugger will find a stable, successful career ever). And yet our system of law does not then say, "you are so much better off than the person who stole from your house, you should just shake it off". That's because the resources at your disposal do not alter your fundamental rights.

If they are interested in operating ethically (I am not suggesting they are doing anything illegal or even illogical) any proposed settlement should be for what they are actually realistically going to sue for.

Offering a settlement for thousands of books, when in reality the settlement is to avoid only a lawsuit for dozens of books, and then turning around and saying how reasonable they are being, just reeks of shit. Perfectly legal I am sure, perfectly logical, a sound business decision... ...but let's just say it reminds me why I hate lawyers.

That the only rational decision a defendant/potential-defendant can make in this situation is not avoid at all costs a trial just drives home to me that any loyalty I feel towards the system is misplaced... but that is a separate issue.

Jammie Thomas-Rasset was sharing 1700 songs, and they asked her for $5000. What do you think would be the ethical amount for them to ask for that many songs?

I think any ethical settlement offer should be for the number of songs that they are hypothetically willing to sue for.

Baffling; your ethical concern is that they did not sue her for more money. "If they were really serious, and not just using the legal system to bully people", you seem to suggest, "they'd set out to ruin her completely and give no quarter until they actually accomplished that".

"Pay a settlement of thousands of dollars, or get sued for dozens of songs", is, as far as I am concerned, demanding a lot of money for few songs.

My ethical concern is that they were deliberately setting out to place people in a situation where the only rational decision is to go with "give us thousands of dollars and do not mount a defense of yourself over a few songs.".

I know, obviously, that you disagree with what I am saying; I am sure I am unable to change that. If you want to continue to pretend not to understand... then knock yourself out. I think what I am saying is pretty simple, however flawed you may find it.

I'm sorry; I literally just don't understand the argument here. If I set your house on fire, incurring $300,000 in damages, and then offer to settle with you for $5,000, your only rational decision is to accept that settlement offer. Am I being unethical if I do that?

If I owned 200 houses around the country, and you burned one down out of carelessness and negligence but without any malicious intent, would it still be unethical for me to offer you the $5,000 settlement?

My understanding is roughly: the settlement amount should be thought of as $n per song that they actually intend to litigate, not $n per song that was available for download, which at least seems like a coherent position to me.

The numbers still seem not particularly unreasonable in that context, but are certainly more than $4/song.

Quite right.

It's frankly bizarre to say "the plaintiff would have been ethical to offer to settle for $90,000, but unethical to offer to settle for $9,000."

This seems to be the entire point of a settlement offer. "I think I could get more out of you, but we can both avoid the court costs if you pay me less than what a court would award me."

I think the argument is "if someone offers to settle for $9000, they lose the right to sue for more than $90,000." Which gets rid of the entire concept of settlement offers, but it's the best I can come up with.

The ethics of the matter is frankly tangential to the original point, massive amounts of money per little tiny chunk of data (be it song, or sms), is nothing new.

Anyway, this is probably pointless, but I'll give this another shot: Yes, the entire point of the settlement is "I think I could get more out of you, but we can both avoid the court costs if you pay me less than what a court would award me."

The "[what] I think I could get you [for]", in the case a few dozen songs. They think they can absolutely ruin you for a few dozen songs, so they are offering you a settlement of several thousand dollars. For our purposes, this is effectively a settlement of hundreds of dollars per song.

Ethics comes into this as a tangent in that I think, if they correctly labeled the settlement, people would not have stood for it. In doing it the way that they did they paint a (in my opinion crap) narrative of being reasonable.

Regardless, massive amounts of money for single SMS messages/songs should by no means be surprising. Even ignoring the pre-litigation letters situation entirely, they were being awarded ludicrous amounts of money for individual songs.

I don't know but I'd be willing to settle with Round Table Pizza and AT&T Wireless for $100 per text and a promise that they will stop SMS spamming me.

I believe email spam is $16,000 per email now...

Wish that went to me. Inbox overflowing.

I don't understand how franchises work. If there were a couple franchises that were responsible for sending the texts, why is the main Papa John's company getting sued, and not the responsible franchises?

Especially after the main company seemingly told all the franchises to knock it off when they noticed...

The little franchises that actually did this don't have millions of dollars which limit the maximum payout of the lawsuit.

So this is just a lawyer driven money grab instead of something actually worthwhile?

The point of making a money grab is to disincentivize a repeat performance. In this case, it's to get Papa John's to be stricter with their franchisees.

I wonder if some of those 500,000 messages were relationship or transactional in nature since the FCC does not ban those [1]

1. http://www.fcc.gov/guides/spam-unwanted-text-messages-and-em...

I think it takes the same skill to discover cases with potential for class action suits as it does to discover and flesh out great ideas.

Think I should start networking with these kind of lawyers and use their skill to develop my ideas.

Better ingredients, better spam, Papa Johns!

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