| Who we are | Organizations | Get Involved! | Helpdesk |
| Weblog | About FLORA | Server project | F.A.Q. |
|
|
|||||||
| ||||||||
Election 2006 (and beyond): Digital Copyright Canada
From: Russell McOrmond <russell_-at-_flora.ca>
To: flora-admin-help_-at-_flora.org
Date: Fri, 16 May 2003 12:25:12 -0400 (EDT)
On Fri, 16 May 2003, Adam H. Kerman wrote:
> From that first sentence, you imply the existence of a contract between
> subscribers to lists you host and yourself. I don't think any such contract
> exists. Nor do I think there's a contract between list owners and you.
>
> There's no consideration; there's no agreement. It's unenforceable.
No agreement currently exists. What this new agreement will say is that
if you continue to use the services of FLORA.org, then you do so under a
few conditions. If you don't agree to those conditions, you can not use
FLORA.org.
The real problem comes in that FLORA.org has existed longer than this
agreement. What do I do with past archives? Do I just purge all archives
prior to the date that the first agreement comes into force (this is a
realistic possibility, by the way).
> One theory of mailing lists is that the mere act of quoting in reply
> violates a copyright. The Pednet list features quotes from newspaper
> articles, sometimes entire articles if relatively short. It's not "fair
> use", but it hasn't harmed the copyright holder (a requirement to
> recover civil damages).
The target of any lawsuit under that theory would be the individual
doing the posting, and not myself as the host of FLORA.org.
This agreement does not protect any of the users of FLORA.org from
lawsuits, it only protects me as the host. All the legal lunacy that
exists in the world still exists.
> Golly. Some defamatory things have been said about Segway, errant
> motorists, etc. If one subscriber is harassing another subscriber,
> you'll just have to rely upon the list owner to crack down on this as
> part of his responsibility. If the list owner refuses to, get rid of
> him.
The issue here isn't whether such postings will be made, but who can be
considered liable for them. The purpose of the agreement is to protect
FLORA.org from lawsuits.
I have no clue what list owners do or do not do on their lists, nor do I
have the time to find out. If I were kept liable for list content, I
would essentially have to close down any list that I was not personally an
active participant in (There goes 95% of FLORA.org in one statement
*sigh*).
> If you are truly concerned about the potential to violate some obsenity law
> somewhere in the world, this language won't protect you from prosecution.
Please explain. I an not worried about people violating these laws. I
am worried only about me being held liable in any way for it.
> There's no way to protect against forging.
I am only trying to become legally protected from lawsuits, not
technically protected from forging.
> >(4) upload, post, e-mail or otherwise transmit any material that contains
> >software viruses or any other computer code, files or programs designed to
> >interrupt, destroy or limit the functionality of any computer software or
> >hardware or telecommunications equipment;
>
> I hate language like this, as if someone has the right to disrupt someone
> else's network till he agrees not to. You're system administrator. You are
> expected to crack down on this. Take it out.
The purpose of this is to make it clear that if someone *does* post an
email that contains malware, that *I* as the host is not liable for it.
I am *NOT* expected to crack down on this. If I thought for a
nanosecond that I could be held responsible for malware distributed
through my servers, the second nanosecond would be used to shut FLORA.org
down.
> >GigaLaw.com has the right, in its sole discretion, to suspend or terminate
> >your account and refuse any and all current or future use of the
> >discussion list (or any portion thereof) at any time.
>
> Again, this is subject to your discretion regardless. It need not be spelled
> out.
This just makes clear what is the case so that nobody can sue me for
terminating accounts. FLORA.org does not have an AUP or any other
agreement, and I am currently exposed to lawsuits.
> >By submitting communications or content to any part of the discussion
> >list, you agree that such submission is non-confidential for all purposes.
>
> This could land you in hot water, again implying that it IS confidential
> except that the subscriber agrees that it's not. It's adhesion language
> (like the contract printed in fine print on the back of a baseball
> ticket). With no opportunity to negotiate, it's not enforceable.
Offer me better language then.
> It's a mailing list. Therefore, nothing posted to it is confidential. People
> have no such expectation of privacy.
This is simply false. There are nutbars out there that do have an
unreasonable expectation of privacy for messages posted to public mailing
lists.
> Whoa. Derivative works? That's plain unreasonable.
>
> Publish? You don't understand copyright law.
Excuse me, but the text you are quoting are written by lawyers and not
myself.
I would be more careful if I were you also given that this sounded a
little insulting when I read it.
> It's beyond any reasonable expection that you, as the owner of the
> server, have any right to republish the message in another medium such
> as a newspaper story or to Usenet.
If you actually believe this, then please unsubscribe from any and all
FLORA.org services immediately.
This is both reasonable, and the assumptions under which FLORA.org has
always existed. Some of the forums, such as this one, have been
automatically republished to Newsgroups since their creation.
> > The internet is changing from the early days when people could generally
> >be trusted, but we are heading into a world where lawsuits will become
> >more common.
>
> Anyone can sue for any reason or for no reason. This won't protect you from
> nuisance suits.
Canadian law (looser pays) protects me a bit from nuisance suits. The
idea here is to make clear that anyone who sues me would loose, and thus
they would not try.
> Mailing lists have certain characteristics. Reasonable people should expect
> these characteristics to exist.
This agreement is not being drafted to protect me from reasonable
people. No reasonable person would sue the host for a community network
service that has been offering services for free.
> 3) There may be an archive; this should be disclosed.
The onus should be on the person posting to verify that there is an
archive, not on the host to disclose it. What should I do -- have a
click-through before posting that verifies that the person knows there is
an archive?
> 4) There may be an interface to another medium; this should be disclosed.
Ditto above.
> I don't think it protects you in any way, so I don't think it's a good
> idea.
I guess I don't feel I have a lot of choices here.
a) Create an agreement to better protect me, even if some people think
it does not protect me.
b) Close FLORA.org under the assumption that I'm too exposed and cannot
be protected.
c) ???
If you have a reasonable option for (c), then please let me know.
Currently I can only think of the first two.
Just leaving things as they have been where there is no documentation
isn't a reasonable option.
---
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/
| Please read the FLORA.org Terms and Conditions before you submit information to FLORA.org | |
Join the Blue Ribbon Online Free Speech Campaign(USA) (Canada) |
 FLORA Community Web
(FLORA.ORG) is sponsored by FLORA
Community Consulting (FLORA.CA).
|