From: "Mark M." <markm@voicenet.com>
Date: Sat, 9 Nov 1996 18:59:17 -0800 (PST)
To: ravage@einstein.ssz.com>
Subject: Re: Mailing list liability
In-Reply-To: <199611092351.RAA01501@einstein>
Message-ID: <Pine.LNX.3.95.961109214609.1822A-100000@gak.voicenet.com>
MIME-Version: 1.0
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Note that none of these say anything about any commercial service being held
liable for defamatory statements because the service cancelled a user's
account or prevented a user from posting in certain areas.  I really don't
see why you consider unsubscribing someone from a mailing list the equivalent
of monitoring posts and exercising editorial control.  Dr. Vulis can still
post to cypherpunks and can still read the list -- just not receive traffic
from toad.com.  Compuserve probably cancels accounts of people who violate the
service agreement.  Of course, you will just argue that there is some sort of
implied contract wrt cypherpunks.  This is ridiculous.  All the complex
aspects of implied contracts would require someone wanting to start a free
mailing list get a lawyer to make sure that anything contrary to an implied
contract is stated in the "welcome message."

As for cypherpunks being advertised as an open mailing list, John Gilmore is
not responsible for these "advertisements" and has never stated that he would
not unsubscribe anyone for any reason.  Nothing about everyone having some
inherent "right" to be subscribed has ever been stated by the list owner.

On Sat, 9 Nov 1996, Jim Choate wrote:

> Cubby v Compuserve (1991)
> 
> The court reasoned,
> 
> "in essence an electronic, for profit library that carried a vast number of
> publications and collected usage and membership fees from its subscribers in
> return for access to the publications."
> 
> The court further ruled that Compuserve had no more editorial control over
> Rumorville than "does a public library, book store, or newsstand, and it
> would be no more feasible for Compuserve to examine every publication it
> carries for potentialy defamatory statements than it would be for any other
> distributor to do so."
> 
> The court also found, "A computerized database is the functional equivalent
> of a more traditional news vendor, and the inconsistent application of a
> lower standard of liability to an electronic news distributor such as
> Compuserve than  that which is applied to a public library, a book store, or
> a newsstand would impose an undue burden on the free flow of information.
> Given the relevant First Amendment  considerations, the appropriate standard
> of liability is whether it knew or had reason to know of the allegedly
> defamatory Rumorville statements."
> 
> The court held that Compuserve was not liable because Compuserve was a
> "distributor" and not a "publisher." The court concluded that because
> Compuserve did not actively monitor the postings of the forum, it was a
> distributor.
> 
> In summary, the court compared Compuserve to a bookstore selling the book
> rather than the publisher of the book.
> 
> 
> 
> Cianci v New Times Publishing Co. (1980)
> 
> "one who repeats or othewise republishes defamatory matter is subject to the
> liability as if he had originaly published it."
> 
> 
> 
> Lerman v Chuckleberry Publishing, Inc. (1981)
> 
> The court held that with respect to news vendors, book stores, and libraries
> are not liable if "vendors and distributors of defamatory publications are
> not liable if they neither know nor have reason to know of the defamation."
> 
> 
> 
> Stratton Oakmont v Prodigy (1995)
> 
> The critical issue in Prodigy was whether Prodigy exercised sufficient
> editorial control over its computer bulletin boards to render it a publisher
> with the same responsibilities as a newspaper or magazine.
> 
> The court reasoned that there were two distinctions in this case sufficient
> to qualify Prodigy as a publisher. First, it held itself out to the public
> and its members as controlling the content of its computer bulletin boards.
> Second, Prodigy implimented this control through its automated software and
> established guidelines  that board leaders were required to enforce. Prodigy
> was clearly making decisions as to content. Such decisions constitute
> editorial control.
> 
> 
> (1)  ;login:, Oct. 1996, V21N5 pp27.
> 
> 
> 

Mark
- -- 
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