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Election 2006 (and beyond): Digital Copyright Canada

Re: Legal issues with mailing lists.

From: Russell McOrmond <russell_-at-_flora.ca>
To: flora-admin-help_-at-_flora.org
Date: Fri, 16 May 2003 12:01:54 -0400 (EDT)

 
On Fri, 16 May 2003, Peter Blanchard wrote:

> The inclusion of the words "false" and "inaccurate" concerns me. How can
> people agree not to make mistakes? Should it be "knowingly inaccurate"?
> Do the other items in the sentence sufficiently cover the risks? I
> suspect there are other legal approaches that might cover this better.

  The purpose of the agreement is to ensure that FLORA.org (me) is not 
liable for anything inaccurate posted by others.  The agreement starts 
with that type of statement, and then later says "no warranty".

  It does not mean that I can sue you if you posted something "false" and
"inaccurate".  It just says that if you do so, that is your problem and
not mine.

> I too have some difficulties with this. In attempting to 
> promote free speech, does such a clause instead inhibit it?

  Nop.

> Perhaps there are less absolute and more effective ways of 
> promoting free speech than by totally prohibiting copyright
> in this arena.

  I don't follow.  These are messages deliberately posted to a public
forum.  To attempt to claim copyright restrictions after the fact in a
message deliberately posted to a public forum is entirely inappropriate.

  If you tried to sue me the most likely outcome would be that you would 
loose the case, but it would still have cost us considerable resources in 
the process.   While our respective lawyers would be happy, we wouldn't 
be.

> Like you, I am not sure to what extent copyright is good 
> for society.

  Please recognize where my template is coming from:  a pro-copyright
legal forum.  This is not about copyright being good or bad for society.  
It is about codifying what I believe to be the status-quo into a legal
document so that nobody can sue (and close down) FLORA.org in the future
for a misinterpretation/miscommunication.

> Sandra makes some important points, particularly in her final paragraph.
> I also don't understand the difference between "moral rights" and
> "copyright rights" ...and suspect the vast majority of people do not.

  They should read up on it then if they want to exercise these rights.

  Before one assumes one has any given right, they should look up the law
on it.  Many creators assume they have rights that they never did, and
feel offended if people infringe upon rights that don't exist.  They also
don't know how to defend themselves in situations where the law does offer
protection.

  Much of what Sandra was looking for were moral rights (not transferable, 
and thus not applicable to this license) and other issues related to tort 
law (defamation, etc).

> As currently worded, I think the whole thing is 
> subject to being misunderstood both in its intent 
> and its detail. It might be a good idea to include
> an introductory paragraph that clarifies the intent, 
> at least. 

  There will need to be a FAQ written as much in a laypersons language as
possible.  It will not be part of the
http://www.flora.org/flora/legal.shtml file as more-wordy documents tend
to be harder to defend in a court if things ever got that far.

> This legal notice seems to exist for two purposes:  (1) protecting Flora
> and others from legal suits and (2) promoting free speech.

  Only (1) is correct.  It protects FLORA.org from legal suits by
codifying in a document the status-quo of what I understood FLORA.org to
be offering.

  The legal notice is unrelated to freedom of speech, other than the fact
that FLORA.org largely exists to provide public forums in support of free
speech.

> I assume "GigaLaw.com" going to be replaced by Flora, the list owner or
> list host.

  Yes.  I am just looking at them as a template as they appear to have
codified a pretty standard looking document.  It is also a group of 
lawyers who will have put considerable effort into this.

  If people know of other such agreements, I am interested to see them as 
well.  I find it interesting that the quick look I did for agreements used 
by other community networks turned up empty.

> In any case, I'm concerned that subscribers will be hesitant
> to give so much (or will *think* that they're being asked to give so
> much, which will have the same effect).

  It is better for people to stop posting than for them to go on believing 
they have the right to sue me for any use I may put their submissions to.

> The ability to manually add subscribers can be an invaluable feature.

  So, what can I do if my mail servers end up in an anti-SPAM filter
because a large number of manually-added subscribers didn't want to be
added?  I don't think I would sue you as that is not my way of operating.

  Do I just delete the list?  If I were to delete the list (the most
likely outcome of someone carelessly adding people who then cause
legal/resource problems) I would need to have some documentation somewhere
that makes clear my right to do so.

> * bulk update of a domain name (e.g. changing 
>    ___@city.toronto.on.ca to ___@toronto.ca);

  Allowed - that is just regular list administration.

> * transferring a list from another host;

  Allowed - same as above.

> * entering addresses from sign-up sheets;

  Not supported.  You can force a challenge/response by hand, but manually
adding random email addresses (that someone claimed to be theirs on some
sign-up sheet) is a problem.

> * subscribing VIP's at their request or consent (VIP's 
>    can be very desirable subscribers, yet often cannot 
>    or will not do the subscription process themselves);

  The whole point is to ensure people are being added only with their
consent.  If you do that other than via electronic means, then that is
fine.  If you have proof of that consent, then they obviously can't sue me
under any future anti-SPAM laws.

> * subscribing people to several lists at the same time
>    (e.g. using a web-form with check boxes for different 
>    lists or content).

  If you are providing some proof of intent to subscribe, then there is no
problem.  How many lists someone is confirming at the same time doesn't
matter.

  Adding people to lists via a web-form without confirming isn't
supported.  If I can go to a form and subscribe someone else, then that
system was mis-designed.

> With mandatory confirmation, many potential subscribers are lost --
> substantially limiting growth.

  It is far better for a few subscribers to be lost than to have the
entire list closed because of anti-SPAM problems.

> There are also situations (for fairly small lists)  where it can be very
> beneficial to be unmoderated, temporarily or permanently.

  Open lists without checks for moderator or membership (IE: any message
sent to a given email address will be replicated, possibly even posted to
an archive) will not be offered by FLORA.org.

  An exception will be for owner-* type lists where the intent is to have
more than one person acting as moderator.  List subscription would be
limited, and thus you would not end up with large numbers of recipients
receiving any SPAM sent in.  Other than extremely odd cases like mai-not
that is on auto-pilot <http://www.flora.org/mai/owner-mai-not/> these
messages would not be archived.

> Some hosts deal with potential risks by providing lists settings to (a)
> strip attachments, and (b) allow moderation of new subscribers (until
> after their first moderated post).

  Your (b) is just a variant of membership-required lists.  This is not an
open list that drive-by-spammers can post to.

> This legal notice may be appropriate for *discussion*
> lists, but surely it isn't for e-newsletters or other lists 
> where subscribers don't post directly to the list. 

  This may be stating the obvious, but the copyright aspects of the
agreement do not apply to people who don't post ;-)

> Many subscribers are youth, newbies or "casual"  subscribers who could
> easily be scared away by in-the-face legalese -- but they are also the
> foundation of future growth!  Could the lengthier parts of the
> agreement, at least, be posted on the web and referred to by a link,
> rather than being e-mailed out to users in its entirety?

  We can point to the legal document and the FAQ.  This list is archived 
and will always be open for people to post questions to get clarification 
(and possibly cause the creation of more FAQ entries).

Just to clarify in case there is confusion:
  http://www.planetfriendly.net/ is not FLORA.org.  You (and not me)  are
already liable for your own lists in case you thought that this agreement
applied to anything other than the lists hosted by FLORA.org itself.

  This agreement doesn't apply to FLORA.ca customers or organizations that
FLORA.ca has sponsored (such as planetfriendly.net).  It only applies to
FLORA.org Community Web, and all services of FLORA.org have FLORA.org in 
the name somewhere (FLORA.org does not sponsor other domains, contrary to 
the incorrect links on some sponsored sites).

P.S.  The link to FLORA Community Consulting is currently 
http://www.flora.ca/  and not http://russell.flora.org/work/ ;-)

  Part of the reason to move all of the non-FLORA.org stuff away from 
the FLORA.org domain was to clarify some of these legal/etc confusions 
that I had been causing.



  In the future there will be an acceptable use policy (AUP) for
CooperIX.net that all customers will have to agree to.  
Planetfriendly.net , as a customer of FLORA.ca (paying $0 ;-) will need to
agree to that AUP.  We have been lax so far in ensuring our customers
agree to an AUP, but that will change in the future.  This AUP will be
very similar to those of other ISP's.

  That AUP is separate from this discussion which only relates to
FLORA.org related sites/lists/etc.

> Gigalaw's wording seems to be oriented to the for-profit world. I wonder
> whether a re-wording with the nonprofit and activist communities in mind
> might make it feel more acceptable.

  It is a legal community that it is based on.

> I know a couple of lawyers in Toronto who have done lots of activist and
> nonprofit work and might consult with you on this for free or a minimum
> charge. Let me know if you'd like to get in touch with them.

  I am doing this to avoid legal fees, and am thus not willing to pay a
lawyer to consult on this.  FLORA.org has no money and exists entirely out
of the kindness of a number of people (including those in this current
discussion).  If someone wanted to sponsor a lawyer to work on this that
would be very appreciated.  I have no more to give to FLORA.org than I
have already.

  As the person who is currently at risk, the legal agreement needs to
serve my purposes. I can accept input from others, but ultimately the buck
stops with me.

> Thanks for all your work on this and the many other behind-the-scenes
> aspects of flora.org. Please let me know if I can be of any help in this
> process, provide feedback on the draft, etc.

  Thank you.  I will continue to keep everything out in the open and in
this forum.  I don't like things to be 'behind-the-scenes', and this
discussion is indicating to me that there has already been a lack of
communication that discussing this agreement has exposed.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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