WIRED ON FRIDAY/Danny O' Brien: As the flood of spam continues to spill over the internet, software to automatically identify and filter it away has grown in popularity. Software filters slash through thousands of unwanted emails that would make inboxes otherwise unreadable, deleting anything that looks suspect.
But what about the mail that absolutely, positively must get through? It's the flip side to the spam problem. For receivers and senders of legitimate mail alike, the cost of just one false positive - one message misidentified as spam and then deleted - is just too high.
What's needed is an "open sesame" code word that lets spam filtering software wave the important mail through. But how can you universally identify non-spam without unscrupulous spammers using the same code to smuggle their messages by?
Ms Anne Mitchell, a Californian attorney, believes that poetry has the answer - that and some hard-nosed legal tactics against real spammers. The US courts are about to show whether she's right or not.
Here's how it works. Ms Mitchell's company, Habeas, owns the trademark and the copyright on this self-referential haiku:
winter into spring,
brightly anticipated,
like Habeas SWE (™)
(The ™, one imagines, is silent.)
Habeas gives permission for anyone to flag their mail as "Sender Warranted Email" (SWE), by reproducing the poem in the headers of their e-mail. (Headers are the envelope on the top of an email. Usually you only see a small part of them, the From and Subject headings, but they can and do contain much more.)
Normal Net users can insert the poem for free. Legitimate bulk mailers or other bona fide companies whose mail is regularly caught in spam filters, can pay Habeas to put the haiku in their headers too. Those filters look out for the haiku, and let Habeas-approved mail through.
Woe betide any spammer trying the same trick. Habeas explicitly forbids any unsolicited commercial mail from carrying the haiku. And they've always said they'll push for prima facie trademark infringement on every mistagged email sent - and maximum damages.
The legal trickery is ingenious, and surprisingly full of subtleties for such a short stanza. Normally a header tag like this would be too short to be covered by copyright. But the law specifically protects poetry, so the haiku is covered. And the haiku includes a trademark, too, so it's protected under both forms of intellectual property (IP) protection (Habeas also has a patent pending on the technique).
A clever legal hack, then. But will it stand up in the court?
Since its introduction in August 2002, Habeas's approach has slowly gained acceptance by the internet community, with haiku-spotting code slipping into the most popular filtering programs.
But sooner or later, somebody was going to challenge the company, and use the haiku to sneak past those very filters.
Last week, Ms Mitchell announced that Habeas would be pursuing their first two court cases. One, against New York mortgage company Avalend and its sister company Intermaark Media. Habeas accuses the company of including the haiku without permission.
The second case is against an individual who, Habeas claims, signed a contract to use the haiku. "Dale Heller signed our free individual licence, and then sent commercial mail including our trademark," Ms Mitchell says. Mr Heller is being sued for breach of contract. The companies advertised in his mail are co-defendants in the suit.
Both companies were reported to Habeas by angry recipients of the mail. (Each haiku that goes out has a contact number at the bottom for complaints.)They're not the first complaints Habeas has received - "One thing the Net is not short of," she says, "is complainers" - but it's the first where they've felt the Habeas warning was wilfully ignored.
So the doubt of many Net users that Habeas would shy away from a legal battle, has been disproved. What happens next is down to the courts.
As pitched court fights with spammers go, Ms Mitchell has the background for it. Before Habeas, she was director of legal affairs for MAPS, a group that provided a similar database of IP addresses thought to be used by spammers.
ISPs use the MAPS database and blacklists like it to prevent zones of the internet from reaching their customers. But IP blackholes remain a controversial practice and MAPS was frequently sued by companies trying to extricate themselves from its ban - at one point, by three corporations at one time.
The organisation also lost support amongst the anti-spamming community when it decided to sue the Gordon Fecyk, creator of one of its blacklists, after he had left the firm.
The legal battles over blacklists have soured many anti-spam activists against using the courts as a tool against unsolicited emails. But as the law catches up with technology, the courts are becoming more sympathetic to their cause. More and more states in the US have adopted specific anti-spam statutes. When the European Unions' specific anti-spam legislation, incorporated in the E-Privacy EU Directive, becomes law later this year, we could be seeing spammers being dragged through the European courts.
Slowly but surely, an international consensus is forming. That's important, because one of the greatest problems facing legal challenges to spam is that most spammers are rather more international than the law.
Critics of the EU initiative point out most spammers aren't from the EU and have little to fear from even Europe-wide law. In the US, state-wide legislation is of little use when battling spammers living across the county line. And even as the US and Europe get their anti-spam act together, spamming servers are moving to South America and Asia.
That's one of the reasons Ms Mitchell has chosen copyright rather than targeted spam laws to fight her case. She is confident that Habeas's claims can work in any jurisdiction that accepts international intellectual property law without getting drawn into new legal territory. "I think we've got all our ducks in a row. Intellectual property law is a stable and known field. And judges understand copyright law a lot better than they do the Internet."
And after these cases are over, she says she's not afraid to go further afield. "Would I sue in an Irish court? Sure. If that's what we have to do." There's no borders, it seems, to her vision of poetic justice.
