Date: Sun, 6 Feb 2005 15:43:01 +0100 From: Anthony Atkielski <atkielski.anthony@wanadoo.fr> To: freebsd-questions@freebsd.org Subject: Re: favor Message-ID: <675747489.20050206154301@wanadoo.fr> In-Reply-To: <LOBBIFDAGNMAMLGJJCKNIEEHFAAA.tedm@toybox.placo.com> References: <1574286459.20050205120828@wanadoo.fr> <LOBBIFDAGNMAMLGJJCKNIEEHFAAA.tedm@toybox.placo.com>
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Ted Mittelstaedt writes: TM> Many content creators take the attitude that any republishing TM> isn't covered under Fair Use. Probably because that attitude is grossly congruent with the law and jurisprudence. TM> That is understandable because the Fair Use doctorine is TM> deliberately broad ... It is somewhat vague ... but it is not broad. TM> This attitude is a lot more prevalent among graphic media creators TM> than authors, because pictures pack a lot more content in a small TM> package. So I understand where your coming from. Fair use is generally not a defense in any situation that involves copying an entire work, even if it is written text. Fair use almost always implies the use of only a portion of a work. TM> Well unless things have changed TM> very recently, you do not have to sign up to post to the FreeBSD TM> Questions mailing list. You have to sign up to receive copies of TM> posts to it, but questions has always been left open for posting. If you have to subscribe to receive it, then it's not entirely public. TM> In any case with other mailing lists, such as the public ones that TM> require signing up, you are confusing an access restriction with TM> signing up. They are one and the same. Any signing up action generally creates an implicit or explicit contract. The subscriber is granted some specific access in exchange for completing the subscription procedure. Ideally the subscription process requires the subscriber to explicitly acknowledge his agreement with the terms of the contract. TM> Signing up to post to a public mailing list does not constitute an TM> access restriction, because anybody can sign up, and the only purpose TM> of having signups is to block spammers. Just signing up to receive it is sufficient to make it non-public. TM> You might have been able to argue at one time in the past that a TM> signup on a mailing list constituted an access restriction. I can still argue that now. TM> However today, most mailing lists would not be able to function TM> at all without signups because of the amount of spam. Whether they can function or not does not affect their legal status. TM> Thus, signups to them are now an integral requirement for them to TM> operate, thus a court would look at any additional restrictions that TM> the signup applied, not just the fact that there was a signup. No, a court could very well look at only the points I've raised. It doesn't have to look at anything else. The requirements of contract law are not waived simply because they are inconvenient for one party. A contract, once concluded, remains binding even if one party finds it troublesome to live up to its obligations under the contract. TM> Your arguing that a political rally is a public forum because there's TM> no restrictions for someone to be there holding a sign - but there TM> are restrictions because you have to wear clothing to be there or TM> they would toss you out. Those restrictions, where they exist, are not imposed by the rally organizers, they are imposed by statutory law. So they don't change the public character of the rally. TM> That is true. However keep in mind that spamming is now a federal TM> crime. Thus it is illegal (in the United States) for the FreeBSD TM> mailing list maintainers to assist spammers. Forwarding spam to you TM> assists spammers. No, it does not, if no editorial control is exerted over the list. If what you say is true, then every ISP and every node participating in the transmission of any e-mail message becomes liable if that message is spam, even if no control on content is exerted by any of these entities. Obviously, that's not the way it works. TM> Thus it is arguable they are required by law exert control on the TM> list to block spam. Only if they exert control on content in any other way. Once you edit content, you assume liability for all of the content. TM> You cannot argue that since the government now by law requires them TM> to block spam ... Which law requires this? TM> Naturally you are correct if there's additional editorial control TM> over the content of the FreeBSD questions mailing list than spam TM> blocking, that the forum becomes non-public. Even spam blocking causes the forum to assume that character. TM> Have you seen this control here? Yes. TM> But for museums that display old masters the situation is different. TM> They know that they have no copyright rights over a painting that is TM> 400 years old, and if they didn't prohibit pictures, they would not TM> be able to prevent the publishing of books of pictures of their TM> paintings. Many museums allow you to take pictures freely. The usual restriction, if there is one, is on flash photography. However, property owners can restrict what may be done on their property, within broad limits. So they can prevent you from taking photos inside their property. However, they can't prevent you from taking photos outside the property, so if an old painting in the public domain is visible from outside the property, you can photograph it. TM> You haven't been in many museums lately. I'm surrounded by museums. The vast majority don't prohibit photography. But policies vary from place to place and from museum to museum. TM> I don't assert that and never have. I assert that with e-publishing TM> that there are not multiple venues like your trying to claim that TM> there are. But there _are_ multiple venues: open Web sites, protected Web sites, open but unindexed sites, P2P networks, FTP servers, e-mail servers, and so on. Permission for publication in one of these venues does not imply permission in all others. Just because they all use computers doesn't mean that they are all one and the same. TM> Well, actually, yes (with a stipulation) because isn't that what a TM> library does? No. Libraries buy copies. TM> Let's say you make 11 copies so now you have 12 copies including TM> the original. You have 12 branch libraries that each copy is sent to. TM> When someone checks out a copy all other 11 copies are locked. TM> That saves you a lot of money for having to haul books around TM> between branch libraries. It's also identical to having only one copy. TM> Now, how exactly are these 2 universes different? Why does it matter? TM> You see this is why I think that trying to define multiple e-publishing TM> venues is a really bad idea. Not to people whose ability to pay rent and buy groceries depends on being able to control the use of their intellectual property. TM> I didn't say that, I said -publishing- which is different TM> than copyright. You mentioned the First Amendment. It's not relevant here. TM> Correct, I should have said 'and Fair Use' as Fair Use was developed TM> separately from the First Amendment. Yes. And it's just a quirk of copyright law, not a Constitutional right. TM> If she is asking Google to remove the links, then correct. But she TM> wasn't, she was asking the FreeBSD list maintainers to remove it TM> from their archive. That is her prerogative, unless she had explicitly agreed to the archiving of her posts. There's a big difference between ephemeral and durable forms of distribution. Granting permission to use material that will be seen temporarily and then will disappear is very different from granting permission to use material in perpetuity. The former does not imply the latter. Furthermore, a public archive exposes her posts to an audience well beyond that subscribed to the mailing list, and when she subscribes she only consents implicitly to distribution to the latter, not the former (and then only temporarily). TM> You just shouldn't let some corporations desire to bend the rules TM> influence your actions. These principles were not invented by corporations. TM> When someone is trying to grab power they were never given TM> orignally, you don't just roll over. Contract law has quite a long history. TM> For a mailing list, it's archives are part and parcel of the forum, TM> they are not an 'other form' No. Many mailing lists are not archived. Saying that archives are implicit to mailing lists is like saying that tape recordings are implicit to telephone conversations. Note that you must agree explicitly to recording of telephone conversations. And you must agree explicitly to archiving of mailing list messages. TM> Wrong. There is no law saying that Google must allow authors to TM> require removal. Copyright law gives authors certain rights; their applicability to Google is a matter of some debate. TM> Google allows people to request removal of links and material in the TM> search database, but authors of these links do not have any right to TM> demand this, this is entirely something that Google has decided as TM> editor of the database, to allow authors to do. The ability of persons to demand that Google do this has not been established (or eliminated) by jurisprudence thus far. TM> The long and short of it is that you cannot base a Fair Use doctorine TM> of e-publishing on what Google does. You cannot use fair use to allow archiving in the absence of permission. TM> No, because she cannot present proof that the Valerie in the posts that TM> are being satirized is the same Valerie as she is. She need only demonstrate beyond a reasonable doubt that persons seeing the posts will identify them with her. Trademark protection actions do this all the time. TM> It's like, I use an anonymous login on a forum, the anonymous login TM> is tarred and feathered, I try to sue the people doing the tarring TM> and feathering based on the grounds that I'm being libeled. Except that TM> nobody knows it's me because I'm using an anonymous login so how TM> have I been libeled exactly? But if you are anonymous, nobody is using your name. TM> I don't think a libel argument would get any further than a computer TM> crime argument. Nice try though, rather original. Not really original, as actions along these lines have already succeeded in the past. Libel is pretty well established and making it electronic doesn't really change its essential character or its actionable nature. TM> Well, now, that is a most interesting angle that I hadn't considered. The essence of this angle is that a person implicitly agrees to her posts being seen by a specific group or category of individuals, namely, other people who have subscribed to the list and who will obviously receive anything she posts. This does not include, however, publication of her posts via an unrestricted archive to a much larger audience outside the scope of the subscription list. And while she implicitly consents to the ephemeral distribution of her posts to other list members, that does not imply consent to keep these posts online forever (see my comment on telephone recordings above). TM> However I think it would end up invalidated due to the old editorial TM> content control clause. That would have no effect on it, as editorial control is a separate issue. TM> What your argument is based on is the idea that there is a difference TM> between members of the general public and list members - thus the TM> forum is content-restricted, thus there's an editor, yadda yadda yadda TM> we know the rest. Yes. And the fact that there ARE identifiable list members proves that such a difference exists. The list is not sent to the whole world, it is only sent to current members of the list (not past, not future, only current, and no one else). TM> However, for public lists I think they would all argue that a signup TM> is an integral requirement for the operation of the list in order to TM> block spammers. The desire to block spammers does not grant any waiver of the fundamental principles of contracts. No matter how much a list owner may wish to block spam, he cannot use that as an excuse to impose unacknowledged obligations on people joining the list. They have to _explicitly_ agree to such terms. TM> Because of that there really doesen't exist a legal 'membership' of TM> the list. The spam protection is as a matter of fact why there's no TM> signup to view the archives - because it's not needed since spammers TM> viewing the archives isn't illegal. Viewing the archives may not be illegal, but archiving the messages may be a copyright infringement, or a breach of contract, or both. In some cases, it may also open the door to libel and privacy actions (some jurisdictions have upheld this view, as for example in the case of someone who says something that was reasonable at the time but became embarrassing years later or when taken out of context, which never should have happened but happened anyway because someone was archiving the material). TM> Of course, if the public had to pay a fee or some such to view the TM> list archives, that would be different. Money need not change hands. All you need is mutual obligations. TM> They would have to. No, they wouldn't. Someone who sets up a list for alcoholics or AIDS victims or anything else and then archives the posts without asking subscribers for permission opens himself to a heap of trouble. TM> If the recovering alcoholics list (and I think that such things TM> exist on Usenet) is completely open for anyone to get posts and to TM> subscribe to, then there's no difference between a searchable TM> archive and the mailing list. It's not completely open if someone must subscribe to it. If you want completely open, look at USENET. TM> Since the mailing list membership is everyone on the Internet TM> (since anyone can post to it) and the archives are already TM> world-accessible, this condition already exists. No. Only members _receive_ posts from the list, so the archive must be accessible only to members. Worse yet, one can argue that subscribers agree only to distribute their posts to members who are subscribed at the same time (and not past or future members), although this argument may not withstand a court test because the very nature of an archive tends to span changes in membership. TM> How do you define leaving the list. By unsubscribing, so that she no longer receives traffic from the list in her mailbox. TM> No, this is just manufacturing on your part. No, it's a legal reality. It's related to expectations of privacy, not just copyright. When you walk nude into a doctor's examining room, you consent to be seen nude by the doctor and her nurse, but you do not consent to have your picture seen by everyone on the Internet. So if the doctor has a secret webcam in the room, he's violating your privacy, unless you explicitly agree to this in advance. TM> Since when do actions in a public forum have a time limit on them? Since members have a reasonable expectation that what they say will not be preserved forever (cf. telephone conversations). TM> Uh huh. Sure. Has there ever been a public mailing list that was TM> truly public - with no editorial control over the posts, and no TM> restrictions on access - that has been required by court order to TM> be shut down? No such mailing list can exist, since it would have to distribute messages to everyone in the world. There is USENET, though, which is precisely this type of medium. Courts cannot shut it down because it doesn't even have a localizable domicile. TM> Anybody or anything can be sued. However not anybody or anything TM> can be successfully sued. Just defending oneself in a lawsuit is likely to bring bankruptcy, so whether one wins or loses is often a moot point. TM> If and when the day ever comes that the list manager is sued, that TM> is the day that the list manager needs to start spending money on TM> lawyers. BSD has been sued by far better lawyers than any that TM> Valerie can afford, and the last time it happened we won. It depends a lot on what one is being sued _for_. TM> No, there is also the FreeBSD Usenet group which is equal or greater in TM> volume of traffic than this mailing list. And Google archives it! ;-) But the quality is no better, and often worse. -- Anthony
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