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Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Derek Newman (argued), Randall Moeller, Newman & New- man, Attorneys at Law, LLP, Seattle, Washington, for defendants-appellees Virtumundo, Inc., Adknowledge, Inc., and Scott Lynn.
Shannon E. Smith, Deputy Attorney General, Robert M. McKenna, Attorney General of Washington, Seattle, Wash- ington, for Amicus Curiae State of Washington.
Jason K. Singleton, Richard E. Grabowski, Singleton Law Group, Eureka, California, for Amicus Curiae ASIS Internet Services, Joel Householter, and Ritchie Phillips.
This case addresses unsolicited commercial e-mail, more commonly referred to as \u201cspam.\u201d1 While ignored by most and reviled by some, spam is largely considered a nuisance and a source of frustration to e-mail users who, at times, must wade through inboxes clogged with messages peddling assorted, and often unwanted, products and services. The rising tide of spam poses an even greater problem to businesses, institu- tions, and other entities through network slowdowns, server crashes, and increased costs. At the same time, commercial enterprise has staked its claim within the online world. The
(2d Cir. 1996). The e-mail-related connotation has its roots in a popular 1970 sketch by the British comedy troupe Monty Python\u2019s Flying Circus, in which the word \u201cspam\u201d is repeated to the point of absurdity.Kelley, 482 F.3d at 1056 n.2 (Thomas, J. dissenting) (citing CompuServe Inc. v. Cyber
ress recites menu items, which, to the restaurant patrons\u2019 dismay, involve increasingly repetitive mention of SPAM, only to be periodically inter- rupted by a group of Vikings chanting a chorus about SPAM until normal dialogue is impossible. David Crystal, Language and the Internet 53-54 (2001) (citing to Monty Python\u2019s Flying Circus, 2d series, episode 25 (BBC television broadcast Dec. 15, 1970)). Thus, in the context of the Internet, \u201cspam\u201d has come to symbolize unwanted, and perhaps annoying, repetitious behavior that drowns out ordinary discourse. The term was first used in the electronic messaging context to describe the practice of send- ing advertisements to many recipients, particularly on newsgroup forums.
U.S.C.C.A.N. 2348, 2348 (noting that \u201c[i]t all started in early Internet chat rooms and interactive fantasy games where someone repeating the same sentence or comment was said to be making \u2018spam.\u2019 \u201d).
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