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. Also other Internet service providers have used a number of other apparently successful methods to mitigate similar attacks. AGIS has not taken significant steps to deal with pings except for attempting to use a screening program, and removing Cyber from its system. 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.
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. 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.