Well, I have gotten in a question about last night’s post on the e360 v Comcast settlement.

The question comes anonymously, and asks me to explain remarks found in this post on usenet. That post quotes the final paragraph and says:

I don’t understand that point of view. As far as I can tell, Linhardt has at most promised to quit the spam business and perhaps only stop spamming Comcast users. As I (miss?) read the settlement, if Linhardt does as he has promised for the next 10 years, he does not need to pay any money except his own legal fees. Isn’t Linhardt’s story that e360 was never in the spam business and never sent any unsolicited bulk email, and that it was all a big Spamhaus/Comcast/etc. conspiracy to block e360’s solicited mail and put e360 out of business? As far as I can tell, Linhardt does not even repudiate that story.

Given the likelihood of any IP address of his not being widely blacklisted as soon as any bulk mail (even fully solicited) is detected, how is promising to not spam Comcast users for the next 10 years painful?

Why can’t the settlement be seen as a loss for Linhardt’s silly claims against Comcast but a win otherwise and so a loss for Comcast?

Now, first of all, I didn’t say it was painful. I said it was “complete, total, and devastating.” Rarely do I pick words rashly and this was not one of those occasions. Pain need not be involved in a complete, total, and devastating loss.

Second, consider the fact that David Linhardt probably does not have $250,000. This makes getting and then collecting a money judgment now kind of pointless.

The third point flows off of the second one. My understanding of things is that, as a general rule, you have about 20 years to collect a judgment. You start with 10 years to obtain it, and if it’s not satisfied at the end of those 10 years, you may ask the court for an additional 10 years. As you look at how Comcast has structured this settlement, consider that by not trying to take blood from a rock now, but instead holding onto documents that allow them to stroll into court at their leisure should he breach the settlement in the future to get blood from … well, something that hopefully has blood at that point, they have, in effect, tacked on a maximum of another 10 years to the process. That is to say that Comcast appears to have everything they need to take a process capped at 20 years and turn it into something they can try to collect on 30 years from now. I ask you: How cool is that?

How did they do that? By getting the confession of judgment. It means that Comcast can go into court LATER and obtain a judgment then. And the clock starts rolling when the judgment is entered. By holding off and getting the judgment later (upon breach), they are able to toll (or stop) the clock.

And finally (and somewhat anticlimactically), consider the mere fact that we’re talking about this. This loss was so total, and the surrender so complete, that these documents were openly filed with the court. They weren’t filed under seal. They weren’t kept confidential and only referred to. They were filed for the whole world to see how this finally went down.

Yes, I understand that some people won’t be satisfied unless there is a head on a pike at the city gates. Unfortunately, Chicago doesn’t have city gates, and probably has a shortage of pikes. But, this loss is as complete as you will usually see a case get when it settles out of court.