From: Greg Broiles <gbroiles@netbox.com>
Date: Sat, 16 Nov 1996 14:51:03 -0800 (PST)
To: Jim Choate <ravage@EINSTEIN.ssz.com>
Subject: Re: Mailing list liability (fwd)
Message-ID: <3.0b28.32.19961110014235.0071328c@mail.io.com>
MIME-Version: 1.0
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At 11:13 PM 11/9/96 -0600, Jim Choate wrote:
>> From markm@gak Sat Nov  9 21:03:24 1996
>> 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.
>
>It is exactly editorial control because it prevents, a priori, submissions by
>Vulis under that account. He is FORCED to resort to other means. That is
>what the courts will see, it is what the jury will see, and it is what will
>eventualy sink the list, and place its operator under financial burden for
>years.

This is inaccurate. Vulis is still sending posts to the list and they are
distributed to subscribers. You seem to have assumed that submissions are
only accepted from subscribers. This assumption is wrong.

>I joined this list under my own volition, I agreed to no review by the list
>operator at any time. I did not agree to not hurt his feelings with my
>comments or views. I did not agree to agree with the operator of the list.
>I did not agree to make him feel warm and fuzzy inside. I agreed to NOTHING
>other than my permission for him to put your submissions in my email box.

I have a very hard time seeing a contract here - I don't think there was
anything close to a "meeting of the minds" to the terms you seem to
imagine, nor do I see any consideration. As you've indicated above, you
took on no obligations - which suggests that your relationship to the list
owner is not that of a party to a contract, but as a recipient of a gift.
The donor of a gift (or series of gifts) is free to stop giving at their
whim. 

> The
>only way I can be removed from this list and not open the operator up to
>legal consequences is by my own volition or the total cessation of this list.
>This applies to every member subscribed so long as their is no proviso posted
>at subscription time.

I disagree strongly. I also strongly disagree that there was/is any
contract between Gilmore and list subscribers or authors. And I strongly
disagree with your ideas about posting notices and the "default" situation
where notices aren't posted. I think that you're mixing up your analyses re
defamation and contract (they are **not** the same thing). I also think
you're using contract-style language to describe obligations apparently
imposed by law, which is misleading. Further, I'm not aware of any law
which would impose the obligations you imagine. If you've got better
information, perhaps you'd be kind enough to post a citation so the rest of
us can catch up with you.

The case summaries you posted don't support your conclusion. The only one
that's even in the neighborhood is Stratton-Oakmont; which, as I pointed
out before, is appreciably different factually (the degree of control was
much greater, the forum was advertised as a controlled one, and the
defendant inspected the message before it was made public), did not receive
further scrutiny at an appellate level, and has been criticized by
commentators and scholars as being poorly reasoned. Stratton-Oakmont is a
poor case to rely upon. As far as I can tell, you're basing your legal
conclusion on the depth and quality of your feelings about this issue,
which is always a mistake.

Finally (and dispositively), the entire field of liability for "publishers"
of online information was changed by the Communications Decency Act. See
<http://www.gdf.com/lb4-1.htm#N3> for more.

But this discussion reminds me of the unproductive discussions that various
legal-minded folks (myself included) have had with Jim Bell from time to
time. And I try not to spend time on unproductive pursuits. So I am not
going to write more about this. I've offered my analysis, and readers can &
will give it whatever weight they think it merits. If I don't respond to
your messages, it's not because I don't think you're wrong, it's because I
don't think saying it over & over helps anyone. Mike Godwin has written and
thought a lot about liability for defamation in the online service provider
context. I recommend his work to people who want to learn more.

It's clear that you think John Gilmore did the wrong thing when he excluded
Vulis. The notion that a relatively inflexible and harsh liability scheme
awaits system operators who wander into some form of content control can be
an attractive one. I don't blame you for liking that idea. But your
conclusion is not supported by case law nor traditional theories of
contract, tort, or property law. The result you want (any content control =
duty to inspect every message = harsh result) might be a good one but it is
not the state of the law today. If you're getting your legal information
from computer media or mass media you're probably getting partially
incorrect information or interpretation. 

--
Greg Broiles                | "In this court, appellant and respondent are the
gbroiles@netbox.com         |  same person. Each party has filed a brief."
http://www.io.com/~gbroiles |  Lodi v. Lodi, 173 Cal.App.3d 628, 219 Cal.
                            |  Rptr. 116 (3rd Dist, 1985)