Cyber Promotions v. AGIS Order

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CYBER PROMOTIONS, INC.

v.

APEX GLOBAL INFORMATION
SERVICES, INC.

NO. 97-593

MEMORANDUM AND ORDER

Plaintiff Cyber Promotions Inc. ("Cyber") moves under Fed R. Civ P. 65(a) for a preliminary injunction directing the defendant Apex Global Information Services ("AGIS") to restore Internet access services to Cyber for 30 days under the terms of a contract between Cyber and AGIS. Cyber is a promoter of unsolicited bulk commercial e-mail (known as "spam"); AGIS is an Internet Service Provider.(1)

The controversy began on September 16, 1997 when AGIS terminated Cyber's connection to the Internet without prior notice. The termination followed a massive "ping attack" on AGIS's network which it maintains appeared to be directed at Cyber's computers.(2) On October 25, 1996, AGIS had contracted in writing with Cyber to grant Cyber full Internet access through one T-1 line. On March 10, 1997, the parties entered into a second contract providing Cyber with two additional T-1 lines. The only difference between the two contracts was the addition to the second contract of two paragraphs: one restricting AGIS from terminating Cyber's service without 30 days notice and the other acknowledging that Cyber was in the business of sending unsolicited bulk commercial e-mail. The first additional paragraph was added because Cyber wanted AGIS to acknowledge in writing that it was aware that Cyber was in the business of sending unsolicited bulk commercial e-mail over AGIS's system; the second was added because Cyber wanted 30 days notice in the event that AGIS terminated Cyber's service to enable it to find an alternate carrier.

On September 22, 1997, Cyber filed a complaint seeking damages, specific performance and moved for a temporary restraining order and a preliminary injunction. The motions for injunctive relief sought the compelling of AGIS to restore Internet access services to Cyber of the two additional T-1 lines for a 30 day period as required by the second contract. I denied Cyber's request for a temporary restraining order and scheduled a hearing on the preliminary injunction. On September 25, 1997, I held a hearing on the preliminary injunction to prove that it has a reasonable probability of eventual success on the merits and it will be irreparably harmed if the injunction is not granted. Opticians Ass'n v. Independent Opticians 920 F.2d 187, 191 (3d Cir. 1990). The harm to the moving party, especially if financial, must be "immediate". Campbell Soup Co. v. ConAgra Inc. 977 F.2d 86, 91 (3d Cir 1992). I must consider the granting or denial of a preliminary injunction in terms of the
possibility of harm to the defendant and other interested persons and the potential impact on the public. 920 F.2d at 191.

Cyber has a valid claim for breach of contract.(3) Paragraph #1 of both contracts provides the following:

AGIS'S DUTIES AND OBLIGATIONS: During the terms hereof, AGIS shall, subject to the terms & conditions hereof, provide CUSTOMER with access to the INTERNET through AGIS. Any and all access to other networks via AGIS must be in compliance with all policies and rules of those networks. . . .No Guarantee of end-to-end bandwidth on the Internet is made . . . AGIS makes no guarantee of service on full routing and/or peering. If AGIS is requested to provide full routing to a customer, that decision is at the complete and total
option of AGIS. This full routing service is subject to termination at any time without prior notice. AGIS cannot guarantee the peering sessions between our customers and other non-AGIS companies and/or networks.

Although Cyber did not persuade me that it did not receive full routing service -- the paragraph captioned "AGIS'S DUTIES AND OBLIGATIONS" can be interpreted as simply a disclaimer for AGIS if it fails to provide full routing service and not a basis for total avoidance of the contract. More importantly, since the parties specifically bargained for the 30 day notice provision in the second contract it controls the other provisions and will be enforced. (See Tr. 9/25/97 at 30-34).

Paragraph #9 of both contracts provides that AGIS will not be responsible for delays or failure to perform due to "strikes, inclimate weather, acts of god or other causes beyond AGIS's reasonable control." AGIS claims that the ping attacks on its router was a factor beyond its reasonable control and thus excused AGIS's failing to reconnect Cyber without prior notice.(4) The ping attacks on AGIS's router did not constitute a factor beyond AGIS's reasonable control that excused AGIS's failure to perform. The testimony indicated that AGIS was aware that its grant of access to Cyber might result in ping attacks on its system. Furthermore AGIS gave assurances to Cyber that it would be able to cope with such attacks. (Tr. 9/25/97 at 32-33, 46). AGIS can cope with attacks albeit at some cost to the quality of the service it provides to others. Also AGIS's chief technician testified that AGIS continues to provide Internet connectivity to other promoters of unsolicited bulk commercial e-mail and that AGIS continued to be attacked with pings after it disconnected Cyber. (Id. at 99-101). Thus the language of paragraph #9 in no way entitled AGIS to disconnect Cyber without notice.

Cyber has demonstrated that it will be irreparably harmed by a a failure to grant the injunction. An irreparable injury is a "potential harm which cannot be addressed by a legal or equitable remedy following a trial". Instant Air Freight Co. v. C.F. Air Freight, Inc. 882 F.2d 797, 799-800 (3d Cir. 1989). A showing that a plaintiff may suffer a substantial loss of business or bankruptcy if relief is not granted meets the standards for interim relief. See Doran v. Salem Inn, 422 U.S. 922, 932 (1975). Cyber's business will be irreparably harmed by being forced into dissolution or bankruptcy unless it is reconnected by AGIS
immediately.

Giving Cyber the benefit of its 30 day notice provision will not be futile as AGIS suggests. Cyber has solicited other Internet service providers, such as AT&T and Bell Atlantic, to provide service in place of AGIS. (Id. at 45.) Cyber has a reasonable possibility of securing Internet access by signing contracts with other Internet service providers. (Id. at 49). However, these services will not be able to be operational for approximately 30 to 90 days after any contract is signed with an alternate provider. Cyber will be irreparably harmed if it does not have access to the Internet while it is waiting to be connected to these
alternate providers. Subsequent to AGIS's disconnection of Cyber, Cyber was disconnected by its backup provider DIGEX. (Tr. 9/25/97 at 43-44). Cyber's attempts to use final backup connections to the Internet at remote locations also failed for technical reasons. (Id. at 45). Cyber cannot be reconnected to the Internet within the next few days without AGIS.

Cyber's business reputation is based on its ability to provide a continuous connection to the Internet. (Id. at 49). Cyber's customer good will is being destroyed and it is losing customers permanently. It has already received demands from its clients seeking damages or refunds. (Id. at 50). If Cyber is not restored to the Internet immediately, Cyber will not have the capital to
commit to a contract with another Internet service provider. (Id.).

I have considered the possible harm to other interested parties, including the defendant, of a grant of a preliminary injunction. The reactivation of Cyber's access to the Internet may well cause the magnitude of damage to AGIS of its "backbone Internet" service, to AGIS's clients or to other users of the Internet, because of retaliatory actions by the pingers. Mr. Pado, the defense witness testified that the magnitude of the disruption would be attributable to this lawsuit. This lawsuit, of course, was triggered by AGIS's improper termination of Cyber without notice. AGIS cannot now argue that its own malfeasance caused greater harm. Furthermore, AGIS continues to grant access to other e-mail businesses and continues to receive attacks without Cyber
as a client. (Tr. 9/25/97 at 99-101, 112, 121, 136). Also other Internet service providers have used a number of other apparently successful methods to mitigate similar attacks. (Id. at 47). AGIS has not taken significant steps to deal with pings except for attempting to use a screening program, and removing Cyber from its system. (Id. at 157-8, 169). AGIS has not, to this date, hired a security expert (Id. at 118) and has not attempted to install a router for the sole use of Cyber. (Id. at 173).

The public interest also tips toward the issuance of a preliminary injunction although it is undisputed that Cyber's business of sending unsolicited bulk E-mail is a controversial one. Many computer users find the receipt of bulk e-mail annoying and intrusive.(5) However, the fact that Cyber is an unpopular citizen of the Internet does not mean that Cyber is not entitled to have
its contracts enforced in a court of law or that Cyber is not entitled to such injunctive relief as any similarly situated business. Cyber specifically bargained for the 30 day notice provision with AGIS because both parties knew the pressures AGIS would face to cut off Cyber. It is in the public interest that parties live up to their legal contracts even if they are unpopular.

AND NOW, this 30th day of September, 1997, IT IS ORDERED that Plaintiff Cyber Promotions Motion for a Preliminary Injunction is GRANTED. Defendant Apex Global Information Services ("AGIS") is ORDERED to restore Internet access services to Cyber Promotions Inc. ("Cyber") forthwith. AGIS is ENJOINED from terminating Cyber's service through October 16, 1997 or until such time as Cyber notifies me and AGIS that it has secured comparable Internet access service whichever is sooner.

Cyber is ordered consistent with Rule 65(c) to post a bond in the amount of $12,500.

/s/
Anita B Brody, J.

1. Under the law it is improper to consider the nature of the activities of Cyber. This includes my strong personal distaste for Cyber's business.

2. "Pings" are generated by a software program and are designed to be used by Internet users to check network connections. These "pings" are also used illegitimately to disable computers attached to the Internet by flooding them with repeated information requests.

3. Although Defendant rightly argues that specific performance of this contract is unlikely to be eventually granted as a form of relief under Michigan law, the issue before me is whether ultimately Cyber has a reasonably likely claim of success on any claim against Cyber, including damages under Michigan law. According to the Third Circuit, due to the federal standard employed,
[a]llowing a party temporary relief under Rule 65(a) is appropriate even though an injunction would not be available under state law. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 799, n.4.

4. Cyber concedes that AGIS may disconnect Cyber temporarily to overcome a ping attack, but challenges AGIS's right to fail to resume service thereafter.

5. Recent cases have held that there is no First Amendment right to send bulk e-mail and that Internet service providers are permitted to block such mail if they choose. See Cyber Promotions, Inc. v. America Online, Inc., 948 F.Supp 436 (E.D. Pa 1996).