Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Path: utzoo!mnetor!uunet!husc6!rutgers!sri-spam!mordor!lll-lcc!ames!sdcsvax!ucbvax!ernie.Berkeley.EDU!jwl From: jwl@ernie.Berkeley.EDU (James Wilbur Lewis) Newsgroups: news.admin,misc.legal Subject: Re: Mark Ethan Smith: For real? Message-ID: <21140@ucbvax.BERKELEY.EDU> Date: Mon, 5-Oct-87 03:28:48 EDT Article-I.D.: ucbvax.21140 Posted: Mon Oct 5 03:28:48 1987 Date-Received: Thu, 8-Oct-87 01:21:50 EDT References: <378d6016.b8ab@apollo.uucp> <5261@jade.BERKELEY.EDU> <2050@kitty.UUCP> <1985@midas.TEK.COM> <2071@kitty.UUCP> Sender: usenet@ucbvax.BERKELEY.EDU Reply-To: jwl@ernie.Berkeley.EDU.UUCP (James Wilbur Lewis) Organization: University of California, Berkeley Lines: 122 Xref: mnetor news.admin:1101 misc.legal:2976 In article <2071@kitty.UUCP> larry@kitty.UUCP (Larry Lippman) writes: -> 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. This is presented as fact, but how qualified are you to make such a judgement? Are you an attorney? - 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"; This is a convenient metaphor, but only that: a metaphor. Usenet should not be confused with broadcast media. -(6) "subscription" Another metaphor; there is no central entity providing news only to those who "subscribe" to it. In the context of netnews, "subscription" is just a convenient way of describing a topic selection algorithm, and does not carry the connotations usually associated with the word. -; 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". I believe the charges are usually for access to the system per se (which often includes Usenet access), not the Usenet access itself. For instance, Mark Ethan Smith has an account on violet.berkeley.edu, which costs money, but Usenet is an unsupported service on that machine. Users who pay for access aren't guaranteed that netnews will be available. I suspect the same goes for most sites on the network. - 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. This is a peculiar interpretation; "sites" are only machines and are incapable of taking any conscious action. The site administrators don't have to take any specific action to cause distribution of the article; once the software is initially set up, the only person who needs to act to cause distribution of an article is the author, by submitting it to the news posting program. If *anyone* can be considered the "publisher" of a netnews article, it certainly must be the author! -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. This is simply a bald assertion on your part, given without any kind of supporting arguments. While net postings *may* be actionable, the only person who can reasonably be held responsible is the author of the article, who *I* argue is also the publisher. Holding the site (or more properly, the site administrator) responsible for a usenet posting is like holding the postmaster liable for something sent through the mail. Neither individual has the responsibility, or even the ability (in the case of a heavily used site) to screen the content of every message to ensure its acceptability. (In other words, I am arguing that the network sites should be treated as common carriers, just like the post office and the phone company.) - 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. That doesn't prove a thing about any particular disclaimer not covered by the examples you give, such as the one used by dasys1. -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/? That would be a problem, but it would hardly be libel. This situation is presumably a violation of a licensing agreement, which would impose a responsibility on the site administration to ensure that unauthorized parties are not given access to source code. The situation simply doesn't extrapolate to libel, so this example is irrelevant. -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". -[...] - 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. Well, I've seen plenty of ads for dining room furniture in NJ posted to the net with world distribution! Yes, from AT&T sites. And I've seen plenty of obnoxious postings from places like DEC and Gould. So maybe AT&T insists that its employees post reasonably, but this cannot in any way be construed as an acknowledgement of responsibility. It's far more likely to be a matter of public relations...they don't want representatives of their company making idiots of themselves on the net. - 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". Well, thanks for trying, but to me it sounds more like you're trying to justify your desire to hassle the site administrator of someone who posted an article you didn't like, and make it harder for controversial people like Mark Smith to obtain public access accounts on other systems. I think what we need here is a good dose of *informed* opinion. Any of the lawyers out there (mcb?) willing to comment? -- Jim Lewis U.C. Berkeley