Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Path: utzoo!mnetor!uunet!seismo!kitty!larry From: larry@kitty.UUCP (Larry Lippman) Newsgroups: news.admin,misc.legal Subject: Re: Mark Ethan Smith: For real? Message-ID: <2071@kitty.UUCP> Date: Mon, 5-Oct-87 00:22:09 EDT Article-I.D.: kitty.2071 Posted: Mon Oct 5 00:22:09 1987 Date-Received: Wed, 7-Oct-87 07:20:21 EDT References: <378d6016.b8ab@apollo.uucp> <5261@jade.BERKELEY.EDU> <2050@kitty.UUCP> <1985@midas.TEK.COM> Organization: Recognition Research Corp., Clarence, NY Lines: 151 Summary: "Facts of Life" about site liability; system administors should read. Xref: mnetor news.admin:1099 misc.legal:2975 In article <1985@midas.TEK.COM>, darcic@midas.TEK.COM (darci chapman) writes: First, just to clear up a minor point: > You have never answered how Mark Ethan Smith's actions constitute > *fraud*. *I* never made that accusation about "Smith" in particular. You have taken my remarks out of context and have deleted the prior references. In any event, that accusation and others were made in articles before mine, as below: References: <378d6016.b8ab@apollo.uucp$$> <5261@jade.BERKELEY.EDU> $$> In article <5261@jade.BERKELEY.EDU$$>, genji@opal.berkeley.edu (Genji Schmeder) writes: $$> >Is this Mark Ethan Smith for real, or an elaborate (and long-standing) $$> >hoax? $$> $$> Mark Ethan Smith has not yet replied to my demand last week for either $$> the names of the "woman hating" programmers working at UCB computer $$> center or a retraction of his/her accusation. (Smith's account, $$> era1987@violet, has been logged in several times since my message $$> appeared in news.) Smith also claimed that woman haters here have $$> maliciously tampered with news software, another serious charge. Now to the important issue... > I have to disagree vehemently: the sites do NOT bear legal responsibility > whatsoever for any articles posted by its users. > ... > The Big Electric Cat is a public access unix system, and has a notice > posted publicly that it is in no way responsible for any postings by > users of the system. I hate to shatter your naivete, Ms. Chipman, but not only do sites have liability for the actions of their users, but disclaimers such as the above on a public access unix system are worthless. Usenet is a publication, albeit an electronic one. Usenet is a publication because it embodies elements including but not limited to: (1) "news"; (2) "articles"; (3) "authors"; (4) "media" [magnetic media is sufficient]; (5) "distribution"; (6) "subscription"; and (7) "solicitation for paid subscription". The last element (7) is particularly aimed at "public access UNIX" sites which generally charge subscribers for access to Usenet; also in this instance, many public access UNIX systems solicit subscribers with Usenet access being the primary "attraction". An author of a Usenet articles does not distribute (or in effect publish) the article; the Usenet SITE distributes (or in effect publishes) the article. To quote from "Mass Communication Law" by Gillmor and Barron, "Actionable libel requires (1) defamation, (2) identification, and (3) publication". In the case of Usenet, only the SITE "publishes", not the author. Most libel suits name only the publisher as a defendant, and not the author; the issue of the author is secondary, and in some cases is immaterial. Consider as an example, a famous case of libel that ultimately caused the collapse of the Saturday Evening Post. Wallace Butts, the athletic director of the University of Georgia, brought a multimillion dollar libel suit against Curtis Publishing Co. (publisher of the Saturday Evening Post) for publishing a false story which claimed that Butts had conspired to rig a college football game. This case went all the way to the U.S. Supreme Court, where it was affirmed in favor of Butts. There was no issue raised concerning liability of the author - only liability of the publisher. Concerning the issue of disclaimers as alleged to be used by site dasys1: Most disclaimers sound good, many people believe them, but in reality they are usually meaningless. In fact, most (if not all) states have laws pertaining to "prohibited contracts"; i.e., there are laws which specifically state that certain types of disclaimers of liability can NEVER be valid. As an example, in New York State the invalidation of certain types of disclaimers of liability is contained in the "General Obligations Law", Article 5 Title 3. There are over a dozen detailed statutes contained within the above law invalidating various types of disclaimers; some examples of the titles of these statutes are: 5-321 "Agreements exempting lessors from liability for negligence void and unenforcable." 5-322.1 "Agreements exempting owners and contractors from liability for negligence void and unenforcable." 5-325 "Garages and parking places; agreements exempting from liability for negligence void." 5-326 "Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforcable." How many times have you seen parking garages with signs proclaiming such language as "Not responsible for damage or loss of vehicles or personal property contained therein.", or with such language printed on the parking ticket? Well - surprise! - such disclaimers are invalid; the parking garage IS responsible. Now, I have gone into considerable detail here and in recent previous articles because I am trying to convey an important message to system administrators: 1. Your site and your organization IS responsible for Usenet articles (and any consequential damages resulting therefrom) that your users post. You do agree, do you not, that your site has a problem if users start posting the contents of say, /usr/src/uts/vax/? Well, I am trying to point out something that could be just as serious, but may not be quite as obvious. 2. Exercise some discretion in whom you allow to have Usenet access. Employees and students have some implied reasons to act in a responsible manner; i.e., their employment or academic standing is "on the line". Guest accounts and "people off the street" usually have no such implied reasons to act in responsible manner; i.e., if they act in an irresponsible manner and get kicked off the system, they take the attitude "So what? I'll go elsewhere". That's not such an easy attitude for an employee or student to take, however. As an example of the above, I have NEVER seen an article containing defamatory language from an AT&T site. AT&T sites constitute a significant portion of the Net. Think about this. In a recent article on this newsgroup (to which I did not feel like directly replying), some questions were raised as to whether the spectre of government regulation or censorship is being raised. This is absolutely NOT the case. I am not talking creating any new type of regulation. Any laws which might apply to abuse of mail or Usenet article posting already exist. I am neither advocating censorship of electronic mail nor advocating censorship of Usenet articles. You are all familiar with the concept of a "trusted host" as applied to networks. I am trying to convey the concept of a "trusted user" as applied to mail and Usenet articles. Can you trust your users to act in a responsible manner and keep your organization free from liability? Do your users have any incentive to act in a responsible manner? Or are they people "off the street" who pay their $ 5.00 or $ 10.00 or so per month, and could care less about the consequences of their actions to your organization? I have done the best I can to make my point. If administrators want to heed my advice, fine; if not, that's fine, too. I am just trying to be helpful by conveying some information which is particularly contemporaneous with, uh, "other events". I have said "my piece" as clearly as I can, and I will now attempt to get out of the discussion loop. If someone has serious questions or wants references as to the legal issues, I will be glad to provide them. If someone tries to "bait" me into further antagonistic discussion, I will do the best I can to resist temptation and keep quiet; however, I promise nothing, since I am a tough old SOB who doesn't take shit from anyone, and who doesn't back down from a fight. <> Larry Lippman @ Recognition Research Corp., Clarence, New York <> UUCP: {allegra|ames|boulder|decvax|rutgers|watmath}!sunybcs!kitty!larry <> VOICE: 716/688-1231 {hplabs|ihnp4|mtune|seismo|utzoo}!/ <> FAX: 716/741-9635 {G1,G2,G3 modes} "Have you hugged your cat today?"