Microsoft's (Nasdaq:MSFT) lawsuit against e-mail advertiser Amir Gans is part of the company's global campaign against junk mail. But regardless of whether Microsoft will win this lawsuit or not, something odd happened to this campaign somewhere between Seattle and Lod.
How would you react if you received, as Gans did, a draft of a $50 million lawsuit from Microsoft? Some companies would consider closing shop. Linspire chairman Michael Robertson, who founded MP3.com, was scared by a Microsoft lawsuit and reached a settlement that including changing the name of his company from Lindows to Linspire. If an American entrepreneur en route to an IPO folds before Microsoft, what will small fry from the Middle East do? This is where a tiny difference between the US and the Middle East apparently comes into play, or more specifically, between Washington State and Israel; to be precise, between Seattle and Lod, Gans's hometown.
An American sued by Microsoft's legal dream team (read: Michael Robertson) rushes to the best lawyer he can afford. What does a Lod-based Israeli entrepreneur do under the same circumstances? He represents himself against the international software giant. Get your handkerchiefs ready. Or maybe take cover, if you're expecting a David-vs-Goliath duel. Stones are about to fly.
In his recently filed statement of defense, Gans makes several expected claims (he claims that Microsoft and he are competitors in the e-advertising business), some poetic claims (a quote from Bill Gates' book, in which Gans claims that Gates proposes sending e-advertising messages), and one unexpected claim. Gans says that under the Computers Law, filtering and blocking junk e-mail is a criminal offense of bugging inter-computer communications. Gans claims that Hotmail, which filters Gans' e-mails, is the criminal.
As bizarre as it sounds, Internet providers have already expressed concern that filtering junk mail (as well as viruses) could be legally problematic. But where does Gans get this idea from? The answer: Moshe (Halemo) Halevi. Who is this Moshe Halevi?
Unlike the legal community, Halevi knows the Computers Law (5755-1995) from first-hand experience. His was the first computer in Israel to be confiscated under the Computers Law by the police in Acre, his home town. The computer was later returned.
When NetVision's Nana website was in late in paying for a column commisioned from Halevi, he sued the Internet service provider (ISP) for copyright infringement, and won three times what he was owed, plus court costs.
He once lambasted Adi Zhurbin, head Objective - Product & Service Comparisons Ltd. (also called Objectivi), an independent Israeli consumer rating and report company (Microsoft's lawyers, take note: the issue was e-advertising by Objective), and was hit with a lawsuit under the Prohibition of Defamation Law (5725-1965).
Halevi also lost a lengthy libel lawsuit against investigative reporter Yoav Yitzhak. The suit involved a doctored screenshot of a photo of Supreme Court Judge Dorit Beinish, originally published on Yitzhak's website. Halevi copied the picture, modified the caption's language slightly -- enough to render it unprintable -- and distributed it over the Internet. Halevi said he used the picture as a parody in order to criticize Yitzhak, who is not a fan of Beinish. However, Yitzhak claimed that this was a clear case of libel.
It is doubtful that losing the case harmed Halevi's reputation as the bad boy of Israel's Internet. These and other adventures can be found on Halevi's website, Halemo and in his newsletter "Electric Mail", under the headline titled, "Halemo against the world".
Back to the subject of Gans, it now turns out that in his statement of defense, Gans, the e-advertiser from Lod, employed an unusual legal adviser - Moshe Halevi. Adv. Haim Ravia reported this development in his legal blog, Law.co.il.
The nightmare team
If Microsoft is sending its "dream team" to this trial, the combination of Gans and Halevi is the "nightmare team" that could lead to some interesting legal arguments and procedures. If ordinary lawyers always think about their next client, which sometimes limits their actions on behalf of a current client, this is not the case when the respondents represent themselves and when their reputation will not be harmed by unusual legal actions.
In total contrast to any other legal adviser, Halevi's reputation is enhanced by each scandal he is involved in, and Microsoft will make his day. As soon as it learned that Halevi wrote Gans's statement of defense, Microsoft this week wrote to Gans to ask who Halevi was, and what was his role in the defense. The request was accompanied by a 36-page questionnaire with over 100 specific questions for Gans to answer.
Give a million addresses
Microsoft asked Gans, for instance, to detail when and how he had obtained all his e-mail addresses, and the substance of the consent the owners of these e-mail addresses had given him, "relative to all the addresses in the respondents' distribution list."
In other words, Microsoft wants all the e-mail addresses on Gans's distribution list. Gans has claimed in the past that this list has several million addresses. If Gans responds to Microsoft's request, it's possible that his address database will become a legal document available to every Israeli citizen with e-mail - and this is at the request of spam-fighting Microsoft.
Do you have a license?
Some of Microsoft's questions referred specifically to Moshe Halevi. Among other things, Microsoft wants to know Moshe Halevi is, whether he is a licensed attorney, what is the substance of the assistance he provided Gans in the latter's statement of defense, and whether he is Gans's employee.
According to Israeli law, only members of the bar may provide paid legal advice. One exception is made in the case of companies, who may be represented by a company employee. On the face of it, Microsoft's questions are intended to undermine Gans's ability to seek the assistance of Halevi. Is Microsoft about to open a new front against Halevi?
Maybe they think as I do, that for their sake, Gans should hire someone with a suit and tie. An arbitrator, Adv. Israel Kantor, has been appointed to the case. This is a sign of goodwill. I don’t envy this arbitrator, who will have to work hard to elicit goodwill to both parties who are seeking battle, and marching rapidly toward a unique Seattle-Lod style clash.
Published by Globes [online], Israel business news - www.globes.co.il - on April 26, 2005