RE: favor

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To: <freebsd-questions@freebsd.org>
Date: Sun, 6 Feb 2005 15:38:59 -0800

> -----Original Message-----
> From: owner-freebsd-questions@freebsd.org
> [mailto:owner-freebsd-questions@freebsd.org]On Behalf Of Anthony
> Atkielski
> Sent: Sunday, February 06, 2005 6:43 AM
> To: freebsd-questions@freebsd.org
> Subject: Re: favor
>
>
> 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.
>

But - you don't. You can post to the list without signing up then go
visit the archives with a web browser to read the replies to your
post.

> 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.

Not in the case of a public mailing list where the signup operation
only assists in the use of it. In the case of a public mailing list
with an archive, signups are not required to access the list. (unless
the archive requires a login to access) And you do not need posting
ability on a this kind of a list to make use of the data on it.

> 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.
>
>
> Just signing up to receive it is sufficient to make it non-public.
>

If you accept that then newspapers aren't public because you have
to subscribe to them. Television isn't public because in many
areas that don't get a TV signal (it's blocked by mountains, etc.)
you have to subscribe to a cable service to get it. The town square
isn't public because it's owned by the city government who can
chase you off of it because you didn't buy a parade permit. Basically,
all venues are non-public.

>
> 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.
>

Except that a signup on a mailing list is no more a contract than
unwrapping the shrink wrap on a piece of software.

> 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.

Not in Oregon, at least, where nude dancing is constitutionally
protected.

>
> 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.
>

You can't have it both ways. If what you say is true then there is
no editorial control over the mailing list.

>
> TM> Have you seen this control here?
>
> Yes.
>

Ah. That I see is the crux of the matter. Your mad at the list
maintainers for blocking one of your posts. ;-)

Seriously, when did you see this control? I am curious as I've not seen
yet even the most objectional post removed or objectional person
blocked.

> 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.

Right, that is exactly what I was saying earlier.

>
> 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.
>

Alright, I'll narrow that - there's not multiple venues with a
mailing list, there's only differences in delivery. I can subscribe to
a Braille version of the newspaper and a regular version. Content is
identical except for pictures, of course. It's the same venue. Delivery
is different.

>
> TM> Now, how exactly are these 2 universes different?
>
> Why does it matter?
>

EXACTLY! It -does not- matter, because the venue is the same.
The archive and the mailing list are the same. I think you
have finally grasped it.

>
> 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.

You cannot grant permission to use material in perpetuity because the
copyright on it eventually expires - at that time you cannot grant
permission
to do anything with it as it goes into the public domain.

And yes, there's currently an argument over how or even if you can define
ephemeral and durable forms of distribution to an electronically
published
document. But in this case when she posted she knew the list was
archived, so if you assume both forms exist in e-publishing then
she granted permission for use in both forms. But, IMHO there's no
such thing as ephemeral and durable forms of distribution for electronic
media at the current time. Your welcome to try arguing that if you want.

>
> 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).
>

Since the posts are archived immediately on being made, the second anyone
posts, they are available to this audience well beyond that subscribed
to the mailing list. There is no such thing as a limited subset of
audience on an archived mailing list like your saying.

> 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

I'm not. Quite obviously, if a mailing list DOES NOT have an archive
then "it's" archive isn't part and parcel of the mailing list. More
and more mailing list software automatically archives though, nowadays.

I'll grant that you might have an issue if you had a mailing list
that was not archived publically, someone made a post, then 2 years
later the mailing list bring into public access a 4 year old archive
that they have been privately maintaining.

In that case the poster would have had an expectation that they
wern't granting consent to archiving since at the time they made
their post, no archiving was available to the public.

Interesting issues to apply to when Google brought online it's
20-year-old Usenet News archive that was maintained on the old
Wargmes-style 9 track mag tape.

>
> 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.
>

And, I daresay, as long as Google and the other search engines continue
their policies of removing data that they never had permission to
post, on request, it will be exceedingly difficult to bring a case to
court that
establishes this.

>
> 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.

Yes, I know that. As I said in the original example which has been long
trimmed, with this instance it wouldn't be possible to demonstrate this,
as her previous posts have not given verifyable data.

>
> 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.
>

No. That isn't what being anonymous means. If you are anonymous, then
you aren't using a name that can be identified as you.

For example my name is Bob Smith. I use Bob Smith as my handle on
a forum. Without any further identifying data in my posts, it is
impossible to ascribe my post to any particular Bob Smith because
there are ten thousand Bob Smiths in the country. Therefore even
though I am using my name, I am anonymous.

>
> 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).
>

In other words, someone years later wants to lie and say that they never
said that, and the courts are upholding this? And you support that?

For example, Bill Gates stated at the 1988 Comdex that Microsoft believed
Comdex is the platform of the 1990s. I have an AVI of it.

Five year later Bill claims that he never thought that OS/2 would ever
amount to anything. I stand up in the press conference and say "hey
Bill, your a liar, I have video of you saying the opposite" He sues me
for libel because I never had durable rights to his statement. The
court rules that he's not a liar.

Good, good. Exactly what we need. 1984 here we come.

>
> 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.
>

Archives the posting without the knowledge of the participants, more
accurately. And yes, I agree with this statement.

>
> 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.
>

I am sorry you believe this. And I'll leave it at that. Perhaps one
of these days you will grow up and understand that there are things
in the world worth fighting for, more important than being bankrupt
or not. Such as the truth.

I would rather be broke to win a righteous fight than solvent because
I've compromised my principles.

Ted

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