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Spam Victim Can’t Prod|Domain to Enforce Ruling

(CN) - The 9th Circuit on Thursday shot down a California man's efforts to enforce a $1.1 million judgment against a pornographic website that flooded his inbox with over a thousand unsolicited e-mails.

Calling the lawsuit a "novel and creative" attempt to hold spammers accountable, the federal appeals panel in San Francisco nonetheless ruled that Daniel Balsam is not a third-party beneficiary to a contract between domain registrar Tucows and the Internet Corporation for Assigned Names and Numbers (ICAAN).

Balsam won a $1.125 million judgment against Angeles Technology, the registered name holder for adultactioncam.com, in 2008 - a dollar, presumably, for each of the 1,125 unsolicited e-mails from the website in 2005 and 2006.

Balsam hit a wall in trying to collect on the judgment because Angeles apparently opted into its domain provider's contact privacy feature.

Tucows, the domain registrar, refused to divulge the identify the pornographic website that spammed Balsam.

Balsam sued Tucows in 2009, alleging breach of contract, negligence and civil conspiracy. He claimed that he was the intended beneficiary of an agreement between Tucows and ICAAN, a nonprofit corporation that administers the registration of Internet domain names. As the beneficiary, Balsam argued that he had a right to enforce the proper use of the registrar's domain names as laid out in the parties' Registration Accreditation Agreement (RAA).

U.S. District Judge Charles Breyer dismissed the case, agreeing with Tucows that Balsam was not a third-party beneficiary of its contract.

The three-judge appellate panel, although seemingly sympathetic to Balsam's plight, also affirmed.

"Contrary to Balsam's arguments, nothing supports his claim that the parties to the RAA intended to benefit, or confer any rights upon, Balsam or any other third party," Judge M. Margaret McKeown wrote for the court. "Indeed, the plain language of the RAA explicitly and unambiguously relinquishes all third party rights."

McKeown added that despite federal and state laws adopted to stop unsolicited e-mails, "'spammers' continue to find new ways to advertise" and to "fill our electronic inboxes daily."

"Although [Balsam's] approach is novel and creative," McKeown wrote, "it cannot survive a motion to dismiss."

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