Asis Internet Services v. azoogle.com, Inc.

MEMORANDUM

Plaintiff ASIS Internet Services, Inc. (“Plaintiff”) appeals a summary judgment for Defendant Azoogle.com (“Defendant”) and an award of costs. We have jurisdiction under 28 U.S.C. § 1291 . We affirm both orders.

Plaintiffs claim under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), 15 U.S.C. §§ 7701 , et seq., fails for lack of standing. “[T]he CAN-SPAM standing inquiry involves two general components: (1) whether the plaintiff is an ‘Internet access service’ provider (TAS provider’), and (2) whether the plaintiff was ‘adversely affected by’ statutory violations.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1049 (9th Cir.2009).

Here, the second requirement is not satisfied. The mere cost of carrying SPAM emails over Plaintiffs facilities does not constitute a harm as required by the statute. See id. at 1053 n. 11. While Plaintiff argues that employee time was spent on spam-related issues, Plaintiff concedes that it has no records detailing employee time. Plaintiff also spent money on email filtering, though the cost of email filtering did not increase due to the emails at issue. Such ordinary filtering costs do not…