|THIS WEBSITE has not been reviewed by, approved by, or created with the assistance of either the MAIL ABUSE PREVENTION SYSTEM LLC or GORDON FECYK.|
"The more things change, the more they stay the same." The narrative overview you are about to read is an excellent example of this statement. It can also be read as a demonstration of the truth of another famous quotation: "Power tends to corrupt, and absolute power absolutely." Before beginning this new version of an old story, I believe the author of the words to follow should introduce himself. I am Nick Nicholas, and I was a MAPS employee from February 1999 to August 2000, for most of that time as the organization's Executive Director.
Although my departure from MAPS was amicable, it was the result of many factors. Among them was a growing concern with the direction the organization was taking. I sincerely hoped MAPS would flourish after my tenure there, but my concerns turned out to be more accurate than my hopes. The decline of MAPS has been marked by several disappointing events, but what you are about to read is the most dramatic demonstration yet of how far MAPS has strayed from its original mission. MAPS is no longer focusing its energy on fighting e-mail abuse and co-operating with others in that fight, but instead is devoting its limited resources to suing a former employee seeking to enforce a contract, and threatening to shut down other efforts to curtail e-mail abuse as well.
The Debut of Blackhole Lists for Combating E-mail Abuse
In early 1997, Paul Vixie took advantage of a feature of the BGP routing protocol and later of the Domain Name System (DNS) protocol in order to deal with e-mail abuse by compiling a list of computers and networks from which he did not wish to receive e-mail messages. As shown in this illustration, messages from e-mail servers on Vixie's list would not reach their intended destination.
Originally, Vixie's intent was no more than to protect his own network resources from being subjected to a barrage of unsolicited promotional e-mail messages originating from one man: Sanford Wallace. As others subsequently followed Wallace's lead and began distributing unsolicited e-mail messages, Vixie added these Internet Protocol (IP) addresses to his list.
Soon other network operators began asking for copies of "Vixie's spam list" which was subsequently renamed the Realtime Blackhole List (RBL). The RBL proved to be very effective in blocking unsolicited broadcast e-mail (UBE, more commonly known as "spam"), and as additional networks began using the RBL it quickly became more and more popular as a method for blocking unwanted e-mail. On 6/3/97 Vixie posted a message to the North American Network Operator's Group (NANOG) describing his "success disaster".
Vixie and Dave Rand later co-founded Mail Abuse Prevention System LLC (MAPS) as the vehicle for distributing the RBL to subscribers. MAPS was formally established as a California limited liability corporation during October 1998. Although MAPS personnel frequently proclaim MAPS is a not-for-profit organization, it was never organized as such. California law recognizes non-profits as a distinct form of corporate organization, and an organization can be either a limited liability corporation or a non-profit, but not both.
New Abuse Tactics Required Introduction of New Countermeasures
As the RBL was adopted by more and more networks, it became a devastatingly effective tool for blocking the attempts of Wallace and others engaged in the distribution of spam. However, in order to evade the RBL blocks, spam distributors began resorting to other methods for disseminating their promotional e-mail messages. One tactic involved the unauthorized use of unsecured e-mail servers to "relay" messages to recipients.
A second tactic which quickly became popular among spam distributors involved installing e-mail distribution software on their personal computers. They would then use an ordinary dial-up account in order to bypass the mail servers of their Internet Service Provider (ISP) and deliver messages directly to the e-mail servers of recipient networks. This tactic became known as "direct-to-MX" abuse, and its method of operation is demonstrated in this illustration.
In October 1998, Gordon Fecyk began developing a list, the ORCA Dial-up User List (DUL) specifically dedicated to dealing with the problem of direct-to-MX abuse. This illustration shows how the DUL prevents direct-to-MX abuse, while still permitting legitimate users to deliver e-mail messages through their ISP's mail servers. Vixie's RBL and Fecyk's DUL operate to address fundamentally different abuse tactics: the RBL was developed primarily to reject all mail from a given host or network, while the DUL generally only impacts e-mail messages originating directly from ISP customers who bypass their ISP's e-mail servers
"If you and MAPS ever part ways, we have to sell [DUL] to you for the prenegotiated value of US$10.00." -- Paul Vixie, to Gordon Fecyk
|MAPS Offers to
Support Fecyk's DUL|
Fecyk announced the existence of the DUL on 10/31/98 and invited subscribers beginning 11/1/98. As mentioned in this announcement, Fecyk had already approached Vixie for assistance. Vixie proposed instead that MAPS host the ORCA DUL project. As Vixie and Fecyk discussed conversion of the ORCA DUL to the MAPS DUL Vixie agreed that if Fecyk and MAPS ever parted ways, Fecyk could buy back the rights to the MAPS DUL for $10.
Fecyk accepted this offer, and Fecyk announced the subsequent relaunch of the ORCA DUL as the MAPS DUL on 2/14/99. At this point, all three basic requirements for a contract existed: offer, acceptance and exchange of consideration. In this instance, the consideration involved Vixie providing access to his systems and Fecyk providing DUL data for distribution by MAPS.
The contract to which Vixie alluded in his 12/98 messages was never completed, and therefore the e-mail exchanges constitute the basis of the contract between Fecyk and MAPS. It established "a meeting of the minds" and was evidenced by the exchange of e-mail messages. Even in the absence of a formal written contract, courts recognize such documents as a legally binding contract as long as they include the three essential elements of offer, acceptance, and exchange of consideration.
Differences Between RBL and DUL
It is important to note that even though the RBL and the DUL used similar methods for distributing the lists, the philosophies and methodologies supporting the two lists are radically different. The RBL was often used to pressure ISPs into terminating access of their customers who distributed spam. ISPs who refused to do so were then listed in the RBL. This approach by its very nature often created adversarial relationships between MAPS and ISPs. The DUL, however, was founded on developing co-operative relationships with ISPs.
Almost all ISPs include provisions in their contracts and acceptable use policies (AUP) prohibiting their customers from distributing spam. Nevertheless, an increasing number of e-mail abusers created multiple ISP accounts and intentionally violated the AUP using the direct-to-MX tactic. ISPs voluntarily provided the IP addresses allocated to their dial-up users to the MAPS DUL as an indirect method of enforcing the ISPs' usage policies. Customers were expected to make use of their own ISP's e-mail servers, and could continue to send and receive e-mail without disruption notwithstanding the DUL's use by other ISPs.
Fecyk Hired By MAPS to Maintain DUL
When I was hired as MAPS Executive Director, it was my understanding that the organization's founders -- who had achieved significant financial successes from the "dot com" phenomenon -- wished to dedicate some of their wealth to dealing with the spam problem which they considered seriously detrimental to the Internet's future. While many of the newly minted millionaires splurged on expensive homes and behaved in self-indulgent ways, Vixie and Rand decided to give back to the Internet community. One of my tasks was to identify and support projects which contributed to the primary goal at MAPS of curtailing e-mail abuse.
Even though MAPS provided resources only for distribution of the DUL, Fecyk was not compensated for his work on the DUL after the 2/14/99 announcement. He maintained the DUL on a volunteer basis notwithstanding the considerable amount of time involved in maintaining the DUL.
Fecyk's DUL project had quickly proven itself as one of the most effective tools for blocking abusive e-mail. Some users reported that the DUL blocked more than 40% of spam, whereas the RBL was blocking less and less spam. Due to the increasing importance of the DUL as an anti-abuse tool, I decided to hire Fecyk so that he could devote his efforts to maintaining the DUL on a full-time basis.
When I was in the process of recruiting Fecyk to come work at MAPS in December 1999, Fecyk mentioned the arrangement he had made with Vixie one year previously. I stated that I did not intend for Fecyk's employment by MAPS to change that agreement, so I worded the employment offer letter very carefully.
As a wise woman once said: "That which is not said is often more important than that which is said." Ordinarily, an employee does not have any intellectual property rights to works produced during his employment. This is typically spelled out in long paragraphs of legalese. In Fecyk's case, it would not be unusual for an employer to demand an assignment of the employee's existing intellectual property rights as well.
I was aware of this common practice and deliberately did not include such provisions in Fecyk's employment offer letter. There was no other written employment agreement entered into between Fecyk and MAPS. However, there was the mutual understanding between Fecyk and myself that the DUL remained Fecyk's project, and he was free to exercise the terms of the 1998 agreement with Vixie whenever Fecyk wished. I informed Vixie of this arrangement, and he verbally confirmed his approval.
Fecyk accepted the terms set out in the employment offer letter and commenced employment at MAPS on 1/2/99. Even though the letter agreement stated that his primary responsibility was maintenance of the DUL, more than half of Fecyk's workload included work on RBL administrative tasks. Fecyk evidently handled these doubled duties successfully because he was promoted to Senior RBL+ Investigator in November 2001 following the resignation of his supervisor, Kelly Thompson.
Fecyk Resigns from MAPS and Attempts to Enforce December 1998 Agreement
Fecyk left MAPS in early February 2002 due to overbearing micro-management by Margie Arbon ("I got tired of Margie telling me how to do my job," Fecyk stated at the time). Fecyk had continued his efforts to develop co-operative and mutually beneficial relationships with service providers, but Arbon wanted to pursue an aggressive approach more similar to tactics associated with RBL listings.
When following up to an inquiry by Anne Mitchell, MAPS Director of Legal and Public Affairs, Fecyk responded that he wished to exercise his rights pursuant to the 1998 contract with Vixie. In Mitchell's reply, she asked to what agreement Fecyk was referring, and on 3/15/02 Fecyk provided Mitchell with a copy of Vixie's 12/7/98 and 12/15/98 messages.
On 3/18/02 Fecyk sent a letter to Rand exercising his rights pursuant to the December 1998 agreement with Vixie, and included a money order in the amount of US$10. Fecyk submitted a proposal to MAPS on the following day offering to continue making the DUL available to MAPS at reduced rates for the purpose of reselling the DUL both separately and as a component of the MAPS RBL+ package.
Since MAPS was generating revenue from the use of Fecyk's intellectual property, Fecyk did not think it was unreasonable for MAPS to compensate him for this use, especially since he would continue to devote considerable time and effort to maintaining the DUL. It was Fecyk's hope that the "new and improved" DUL would produce sufficient income to cover his living expenses because maintaining the DUL was a full-time job. On 3/21/02, Fecyk publicly announced his departure from MAPS as well as his intent to make the DUL available to the public. Fecyk announced the availability of a preliminary version of the DUL on 3/23/02
"You appear to be under the misimpression that the material contained in the MAPS DUL is your property." -- Anne Mitchell, to Gordon Fecyk
MAPS Reneges on December 1998 Agreement with Fecyk
On 3/21/02 Mitchell denied that Fecyk had any rights to the DUL notwithstanding the clear and unambiguous language of the contract Vixie and Fecyk entered into in December 1998. MAPS thus reneged on its agreement, and refused to restore the DUL rights to Fecyk. Instead, MAPS returned a copy of the ORCA DUL in the form it was originally provided by Fecyk in 1998. In addition, on 3/28/02 Rand sent Fecyk a message insisting that MAPS retained all rights to the DUL and seeking to impose onerous restrictions on Fecyk's ability to market his resurrected DUL.
In a subsequent phone conversation between Rand and Fecyk, Rand told Fecyk that he must either sign the agreement or be sued by MAPS. Rand also claimed that, if he chose to, he "could shut down half of the DNSBLs out there." There is no patent on the process of using DNS or BGP to distribute blackhole lists, and plenty of prior art which would eliminate the possibility of obtaining such a patent. Nevertheless, Rand seemed to be under the impression that MAPS had exclusive rights to these processes.
Fecyk Abandons Plans to Revive ORCA DUL
At this point Fecyk announced his decision to abandon reviving the ORCA DUL altogether. He could not afford a legal battle with MAPS, so he PGP-signed a statement affirming that he was destroying all data relating to MAPS which was in his possession In addition, he generously offered to make available to MAPS the development work he had done on the DUL since leaving MAPS.
Although I do not personally know whether or not Fecyk did in fact consummate all of the undertakings described in his 3/29/02 certification, I am convinced he did so. I do have personal knowledge of Fecyk's integrity and character, and I would be extremely surprised if he submitted a false certification to MAPS. However, after sending the e-mail message, Fecyk's legal counsel advised him not to sign any documents, and therefore Fecyk did not follow up with a manually signed copy of the certification.
"Dave [Rand]'s even admitted to me he could shut down half the DNSBLs out there if he wanted to." -- Gordon Fecyk, referring to Dave Rand's comments.
Complete Capitulation to MAPS Demands, MAPS Sues
Even though Fecyk had complied with all of the demands made by Rand, and had abandoned his idea of offering a "competing" DUL, this was not sufficient for Rand. Rand continued to threaten to sue Fecyk, and in fact did so.
A hearing was held at 10AM on 4/11/02 in Winnipeg, Manitoba. MAPS sought five motions for a temporary restraining order against Fecyk; Mitchell and Arbon submitted affidavits containing numerous factual errors and materially misleading statements in support of these motions. Two of the motions were rejected, and the three TRO motions which were granted by the court prohibit Fecyk from (1) doing what he had already decided not to do, (2) claiming any ownership rights to the DUL, and (3) making any false or untrue statements about MAPS. Copies of all court documents relating to the lawsuit are available at http://www.lawsuitinfo.com.
It saddens me greatly that it is necessary for me to bring all of these disturbing facts to light, but I think it is essential for the Internet community to be aware of what MAPS has become.
In order to achieve its goal of eliminating e-mail abuse, MAPS has always relied upon and encouraged the voluntary input of many individuals. Those individuals donated considerable time and effort to assisting MAPS with a view towards benefiting the entire Internet community; it was a community effort intended to benefit the community.
MAPS acquired information and projects based upon this premise, but over time has altered that premise. Information which had been freely provided to MAPS had been offered for free by MAPS. However, in August 2001 MAPS began restricting the distribution of this information and started advertising the sale of subscriptions to those wishing to acquire the benefit of MAPS resources. Nevertheless, MAPS has not begun compensating those who are making these resources possible.
MAPS is no longer devoting its energy to fighting spam and co-operating with others in that fight, but instead is suing a former employee who merely suggested that he wanted to exercise his legitimate rights pursuant to a contract with MAPS. I find it extremely ironic that an organization which is currently soliciting donations to its own legal defense fund would now be using its limited resources to pursue litigation against a former employee.
April 25, 2002
|THIS WEBSITE has not been reviewed by, approved by, or created with the assistance of either the MAIL ABUSE PREVENTION SYSTEM LLC or GORDON FECYK.|