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Brittney Fenn, et al v. Redmond Venture, Inc.

Case No. 20030946-CA (Utah Court of Appeals, October 15, 2004)

Software Maker Not Responsible For 'Spam' Advertising Its Products Sent By Third Parties

Court affirms the dismissal of claims brought under Utah's antispam statutes (since repealed) against defendant Redmond Ventures, a software company.  The Court held that the software company was not responsible for e-mail sent to plaintiffs advertising defendant's product, even if sent by independent contractors engaged by defendant to markets its product, because the agreement governing that marketing relationship prohibited the use of unsolicited commercial e-mail.

Marketers Prohibited From Using 'Spam'

Defendant Redmond Venture Inc. manufactures various software products.  Redmond engages independent contractors to market these products, which independent contractors receive a percentage of all sales they generate.  These contractors are engaged pursuant to agreements which forbid them from using 'spam' to market Redmond's products.  Redmond's agreements provide, in pertinent part: :

Red[mond] V[entures] takes appropriate steps to ensure that any promotion of its products is NOT accomplished via unsolicited business electronic communications ("SPAM").  Promoter hereby agrees not to use SPAM in its promotion of Red[mond] [Ventures's] products.

Plaintiffs each received unsolicited commercial e-mail advertising Redmond's software products.  Claiming the transmission of these e-mails violated Utah's Antispam Statute, Utah Code Ann. §§13-36-101 to 105, plaintiffs commenced this suit.  Among other things, Utah's Antispam Statutes (repealed in May 2004) require a sender of commercial e-mail to place certain information in the e-mail's subject and body.  Liability for sending e-mail in violation of the Act is imposed on a person 'who sends or causes to be sent' non-compliant 'spam'.

Software Maker Not Liable For 'Spam' Because of Contractual Prohibitions

Redmond moved for summary judgment, arguing that, in light of prohibitions contained in its marketing agreement, it did not cause any spam to be sent to plaintiffs.  Both the District Court and Utah's Court of Appeals agreed. and dismissed the claims asserted against Redmond.  Said the Court of Appeals:

Examining the four corners of the Anti-Spam Agreement, we conclude that it unambiguously prohibits RedV promoters from using unsolicited email message as a marketing tool. . . .  Thus RedV's affidavit, if undisputed, establishes that RedV did not "cause" illegal email to be sent within the meaning of section 13-36-103.  As the district court observed: "If [the email messages were] sent by RedV [p]romoters, the actions of those . . . [p]romoters were clearly unauthorized under the explicit terms of RedV's policies.

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