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Election 2006 (and beyond): Digital Copyright Canada

Re: Legal issues with mailing lists.

From: "Adam H. Kerman" <ahk_-at-_chinet.com>
To: flora-admin-help_-at-_flora.org
Date: Fri, 16 May 2003 13:10:03 -0500 (CDT)

At 12:25pm -0400, 05/16/03, Russell McOrmond <russell@flora.ca> wrote:
>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.

I understand what you are attempting to do. This isn't how I understand
contract law. I don't think you can establish that you have an agreement
between two parties in which one party agrees not to do certain things.

>>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.

How does this protect you? A newspaper could discover quotes of articles beyond
"fair use". The publisher could name you in a lawsuit. You could produce this
agreement as a defense; it probably wouldn't get you dropped as a party to the
lawsuit. In any event, it wouldn't allow you to avoid his scrutiny in the first
place, which is your purpose. At some point, you could get a "cease and desist"
lettre citing a specific article. What action will you take? You're not going
to tell the publishing *^&$*&^#%$ and sue the subscriber. You'll simply purge
whatever it is from the archives. You'll reason it's the least hassle on your
part.

Now, I'd be more than willing to ask that subscribers refrain from reposting
newspaper articles in their entirety to Pednet. The practice has annoyed me; I
don't think it leads to discussion.

>>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.

You get a "cease and desist" letter from the manufacturer of Segway. My guess
is you'd purge the archives and not argue with them. But you haven't avoided
scrutiny. If there were no archives, what if a Segway agent subscribed to
Pednet and held you responsible for negative comments? What would you do? You'd
purge the mailing list.

I don't think you'd let anything get as far as a lawsuit.

>>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.

You know about the couple operating a server that was prosecuted from another
jurisdiction in the United States for violated "community standards", the loopy
legal distinction the US Supreme Court makes between protected speech
(obscentity) and potentially censored speech (pornography). The prosecutor
found someone in HIS jurisdiction willing to log onto the server.

Obscene material certainly isn't protected speech elsewhere in the world. I
have no idea what Canadian civil rights are. I suppose you cannot face
prosecution from OUTSIDE Canada. The mere act that someone else put the
material on your server contrary to your instructions may not be an affirmative
defense from all manner of prosectutions.

>>There's no way to protect against forging.

>  I am only trying to become legally protected from lawsuits, not
>technically protected from forging.

The person doing the forging won't be the subscriber himself, but someone
trying to cause trouble for him. The person claiming to be the victim could sue
you; he could very well be a subscriber to a flora.org mailing list.

There's no reasonable way to establish identity. As long as you aren't one of
those systems claiming to be "secure" or doing something unique with email
messaging, I don't think it needs to be stated. There is a "reasonable"
expectation from use of email. If you attempt to state anything defining
expectations or who is liable for what, my concern is that you could be
changing the nature of these "reasonable" expectations which could do you more
harm than good.

>>>(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.

Oh. I thought you were targeting malicious users attempting to crack your
network.

>  I am *NOT* expected to crack down on this.

Well, maybe you need to state that "FLORA makes no warrantee, express or
implied, that software downloaded from this system... "

>>>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.

But you're not an ISP. You have no business relationship with list owners or
list subscribers. If you state a policy, then you have GRANTED me the right to
establish a mailing list or to be a subscriber PROVIDED I don't violate said
policy. Without a stated policy, you could purge my mailing list for any
reason. Do you want to give Pave Over America the right to operate a mailing
list on your server by implying that there's any sort of business relationship
between you and list owners?

>>>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.

If I were you, I would write a document in friendly language that explains the
nature of mailing lists and expectations of privacy.

>>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.

Sorry. I should have said "reasonable expectations".

>>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.

I apologize; that did sound harsh.

Copyright protects the owners of PUBLISHED works. While there is no legal
language that I am aware of specifically defining mailing lists as a medium, a
rational way to view the situation based on the characteristics of mailing
lists is that a message posted to a mailing list is published upon distribution
to the other subscribers. Whatever copyright protection there is of the
author's work takes effect at that time.

If someone else reposts that message without permission, say as part of a
scholarly article claiming it as his own work, he have violated copyright. The
work has already been published.

>>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.

What, mail-to-news gateways? Assuming the gateway is a known feature of the
list, that's not what I am talking about.

Besides, local newsgroups on your server aren't Usenet, if those are the
newsgroups you are talking about. You don't operate a mail-to-news gateway to a
Big 8 or alt or can group, do you?

>>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.

I'm attempting to use "reasonable" in the way it's used in civil suits in
American courts. I'm probably boluxing up the concept. In civil suits,
"reasonable" doesn't mean "common sense", unfortunately.

>> 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?

No. Majordomo has that info file feature that new subscribers receive
automatically. That's the place to disclose the existence of the archive. If
there's change in list policy, it must be announced on the list and the info
file must be updated. That's all the protection you need.

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