Ted Mittelstaedt tedm at toybox.placo.com
Sun Feb 6 05:52:04 PST 2005

> -----Original Message-----
> From: owner-freebsd-questions at freebsd.org
> [mailto:owner-freebsd-questions at freebsd.org]On Behalf Of Anthony
> Atkielski
> Sent: Saturday, February 05, 2005 3:08 AM
> To: freebsd-questions at freebsd.org
> Subject: Re: favor
> Except that it's not covered under fair use.  It requires an explicit
> license.

No.  Many content creators take the attitude that any republishing
isn't covered under Fair Use.  That is understandable because the Fair
Use doctorine is deliberately broad, has no real "litmus test" once
again by design, and many bona-fied infringers try to talk their way out
of prosecution by hiding behind Fair Use.  So many content creators
would rather just make it easy on themselves and not have to look
at individual situations to determine if it's Fair Use or an
so they just assume the position that Fair Use doesen't exist.

This attitude is a lot more prevalent among graphic media creators
than authors, because pictures pack a lot more content in a small
package.  So I understand where your coming from.

> TM> If you go carrying a sign in a public place in order to get it
> TM> captured on film - such as at a political rally that Channel One
> TM> news is filming - then later on switch parties then you cannot go
> TM> back to Channel One and demand they airbrush your sign out of their
> TM> archives. Why do you think that Channel One doesen't go getting
> TM> consent signatures from every one of the 1000 people at the rally?
> A discussion forum isn't a public place in that sense, because it
> imposes restrictions on access.  If you have to sign up, register,
> subscribe or anything of the kind in order to post to the forum, it's
> not public.

Well unless things have changed
very recently, you do not have to sign up to post to the FreeBSD
Questions mailing list.  You have to sign up to receive copies of
posts to it, but questions has always been left open for posting.
This has caused complaints in the past.  FreeBSD has always blocked
spammers by
requiring the reverse-address lookup requirement, which does block
legitimate posts from time to time.

In any case with other mailing lists, such as the public ones that
signing up, you are confusing an access restriction with signing up.
Signing up to post to a public mailing list does not constitute an
access restriction, because anybody can sign up, and the only purpose
of having signups is to block spammers.

You might have been able to argue at one time in the past that a
signup on a mailing list constituted an access restriction.

However today, most mailing lists would not be able to function
at all without signups because of the amount of spam.  Thus, signups
to them are now an integral requirement for them to operate, thus
a court would look at any additional restrictions that the signup
applied, not just the fact that there was a signup.

Your arguing that a political rally is a public forum because there's
no restrictions for someone to be there holding a sign - but there
are restrictions because you have to wear clothing to be there or
they would toss you out.  You have to understand English so that you
don't hold the sign upside down.  etc. etc.  So according to your
logic political rallies could not ever be public events unless absolutely
no restrictions were placed on them.  I'll keep that in mind and
next time there's a political rally I'll be sure to send my
dancers to it to insure that it's a public rally. ;-)

> If anyone exerts any control on the content of the forum,
> either through restrictions on access or direct editing of the content,
> then the forum is not public--and additionally the person exerting
> control assumes liability for the entire contents of the forum.

That is true.  However keep in mind that spamming is now a federal
crime.  Thus it is illegal (in the United States) for the FreeBSD
mailing list maintainers to assist spammers.  Forwarding spam to you
assists spammers.  Thus it is arguable they are
required by law exert control on the list to block spam.  You cannot
argue that since the government now by law requires them to block
spam that the forum is now no longer public because they are
following the law.  (well you could, but that's so twisted that
I think a court would toss it)

Naturally you are correct if there's additional editorial control
over the content of the FreeBSD questions mailing list than spam
blocking, that the forum becomes non-public.  Have you seen this
control here?

> TM> Only if photographs are prohibited.
> Even if pictures are not prohibited, you may not take pictures and
> republish them.  That's an infringement of copyright.

Museums being what they are you would have to assume that everything
in a museum that was younger than a couple hundred years and is
printed or sculpted or painted or otherwise created for artistic
expression or performance, is indeed copyrighted.

But for museums that display old masters the situation is different.
They know that they have no copyright rights over a painting that is
400 years old, and if they didn't prohibit pictures, they would not
be able to prevent the publishing of books of pictures of their
paintings.  If they could do that, it would effectively extend
copyright forever, which would violate the mandatory expiration
date Copyright contains.

Copyright eventually expires, despite certain person's out there
working to try to extend it forever.  Just because you own the
original master, doesen't mean you own copyright rights to it.
Once those rights have expired, you don't have them.

> TM> And in just about every museum out there photographs ARE
> prohibited,
> TM> as a matter of fact, simply for this reason.
> No, most museums that prohibit photography do so to protect
> the works in
> question (although such protection really isn't needed, as
> flash doesn't
> damage paintings and such in the ways that people assume).

You haven't been in many museums lately.  Go to any decent
museum and ask someone other than the minimum-wage bonehead
at the information counter why they prohibit pictures.  And
the British Museum's little signs don't say "flash photography
prohibited" they say "photography prohibited" they don't care
if it's flash or not.

And of course in the US they claim that flash damages the
paintings because it's not politically correct to say "we don't
let you take pictures because we want you to spend $50 on
our book at the gift shop" as you look like an evil moneygrubbing
scumbag.  So it's better to pretend that all cameras cannot
be set to not trigger flash.

> TM> As an author of course you ought to know that I am on the side of
> TM> electronic publishing being considered the same as print
> publishing.
> In that case, I'm surprised that you would assert that
> publishing in one
> venue implicitly grants permission to publish in other venues.

I don't assert that and never have.  I assert that with e-publishing
that there are not multiple venues like your trying to claim that
there are.

> This is
> like saying that if I have your book (which, incidentally, I do), I can
> make photocopies of it freely.  By selling your book to me, you made it
> public and implicitly granted permission to make other copies
> of it that
> are also accessible to the public ... right?

Well, actually, yes (with a stipulation) because isn't that what a
library does?

Let's say you make 11 copies so now you have 12 copies including
the original.  You have 12 branch libraries that each copy is sent to.
When someone checks out a copy all other 11 copies are locked.
That saves you a lot of money for having to haul books around
between branch libraries.

The stipulation of course is that only 1 copy can be used at any
one time.

Go back to relating this to the original post that triggered this
disussion.  Valerie made a post to a public mailing list.  The
nature of this public list is it gets the content and publishes it
to an undefined number of different recipients.  The number could
be 10,000.  It could be 100,000.  Valerie doesen't know how many,
just as the organizers of the political rally that got filmed on
Channel One don't know how many people watched the TV images of the

Now, in one universe, 10,000 copies of the post went out, and
500 recipients of that post happened to
be soldiers deployed to Iraq, just before the post was sent.
Over the next 3 years they all come back at various times and
decide to read all their e-mail that has piled up for the last
3 years, and at that time they read Valerie's post.

In the other universe, 9,500 copies of that post went out.  Over
the subsequent 3 years, there are a total of 500 access of that
post on the archive servers that the mailing list is archived

Now, how exactly are these 2 universes different?

You see this is why I think that trying to define multiple e-publishing
venues is a really bad idea.  The end result in both those universes
was a total of 10,000 accesses of Valerie's post, all occuring
over the same time period.  And on top of it all, when Valerie
made her inital post, she had no idea the number of recipients
it would get.  So, really, she in effect gave permission for
an undefined number of copies to be e-published.

> TM> Naturally the electronic content creators are continually trying
> TM> to get laws into place that consider e-publishing as some sort of
> TM> "special" publishing exempt from the First Amendment.  Is that what
> TM> YOU want?
> Copyright protection has nothing to do with the First Amendment.

I didn't say that, I said -publishing- which is different than copyright.

> TM> Until case law has defined e-publishing as under First Amendment
> TM> rights it is in that grey area of could be interpreted one way
> TM> and could be interpreted the other.  I am SQUARELY in favor of
> TM> interpreting it under First Amendment rights which include Fair
> TM> Use ...
> The First Amendment and copyright law (including fair-use rights) are
> completely unrelated.

Correct, I should have said 'and Fair Use' as Fair Use was developed
separately from the First Amendment.

> TM> ... which is why I came down on poor Valerie like a ton of bricks,
> TM> because what she is doing sets a dangerous precedent that has
> TM> implications far, far beyond her piddly little website, or for
> TM> that matter beyond our piddly mailing list.
> It sounds like she is only asserting rights that she already
> has,

If she is asking Google to remove the links, then correct.  But she
wasn't, she was asking the FreeBSD list maintainers to remove it
from their archive.

> The current trend in IP law is
> towards ever greater restrictions, thanks to the interests of large
> corporate concerns who make all their money from such restrictions, and
> so it might not be wise to disregard possible sources of infringement.

I never said to disregard anything.  Everyone should be aware of
the various money grabs being used by the large corporate concerns.
You just shouldn't let some corporations desire to bend the rules
influence your actions.

When someone is trying to grab power they were never
given orignally, you don't just roll over.

> TM> Sooner or later there will of course be a court case on this.
> TM> If you want to count yourself on the Dark Side then go ahead
> TM> and keep yapping that posts aren't publishing.
> That's not what I said.  Posting to a forum is one form of publishing.
> Agreement to publication in that one form does _not_ imply agreement to
> publication in other forms, though.

For a mailing list, it's archives are part and parcel of the forum,
they are not an 'other form'

> TM> Yes, and this is because it's Fair Use.
> Well, no.  If it were fair use, then authors would not be able to
> require their removal.

Wrong.  There is no law saying that Google must allow authors to
require removal.  Google allows people to request removal of links
and material in the search database, but authors of these links
do not have any right to demand this, this is entirely something that
Google has decided as editor of the database, to allow authors
to do.

Keep in mind Google derives revenue from selling it's lookups to
others, and from selling adverts.  If people go to a site in the
search engine only to be told by the site operator to get lost, they
never wanted to be in Google in the first place, that devalues
Google's search results.  So, it is Google's responsibility to it's
stockholders to allow removals, because not doing so would be
abrogating it's fudiciary duty to the company.

The long and short of it is that you cannot base a Fair Use doctorine
of e-publishing on what Google does.  If at some point in the future in
some future case someone was trying to argue that just because Google
allows delisting that this is proof that search engines aren't
Fair Use, such an argument would be shot down in short order.

> TM> And in this case all we have is a source IP address, Valerie has
> TM> made no actual statements here identifying who she is with any
> TM> degree of verifyability.  A defendant such as myself in such a
> TM> case would have a solid legal footing to argue that
> because forgeries
> TM> of a person's e-mail address and username are so simple, I have an
> TM> excellent expectation that Valerie in fact doesen't exist, or
> TM> the actual poster of the post isn't the real Valerie, a court
> TM> would then throw the entire thing out.
> But in that case, Valerie could then attack on the basis of libel, in
> some cases (if the forged posts used her name and presented her in a
> light that materially damaged her reputation).

No, because she cannot present proof that the Valerie in the posts that
are being satirized is the same Valerie as she is.  And even if she
could (ISP records or whatnot) since until such time that she does this
nobody else in the forum knows the real Valerie is her, the real one's
reputation isn't damaged and thus she wouldn't have had grounds to
sue in the first place.

It's like, I use an anonymous login on a forum, the anonymous login
is tarred and feathered, I try to sue the people doing the tarring
and feathering based on the grounds that I'm being libeled.  Except that
nobody knows it's me because I'm using an anonymous login so how
have I been libeled exactly?

Oh, it's because I announce on the forum that the anonymous login was
me all along - except wait a minute, as soon as I do that someone else
says wait a minute, I'm the real anonymous login - so now we have
two people claiming to be the anonymous login, how does the forum
know which is telling the truth?

I don't think a libel argument would get any further than a computer
crime argument.  Nice try though, rather original.

> TM> I wasn't talking about the archive manager of Google.  I
> was talking
> TM> about the archive manager of the FreeBSD mailing list
> archives.  She
> TM> granted the right to publish to them, not to Google.
> Did she?  Did she take a positive and explicit action to indicate that
> she agreed with archiving of her posts?
> There might be some basis for claiming that she granted such permission
> implicitly if the archives are available only to members of the list,
> and if the archives are purged of her posts when she leaves the list.
> In that case, virtually the only people with access to her posts are
> people who also could see them as they passed on the list.  However, if
> the archives can be searched by non-members of the list, her permission
> is required.

Well, now, that is a most interesting angle that I hadn't considered.

However I think it would end up invalidated due to the old editorial
content control clause.

What your argument is based on is the idea that there is a difference
between members of the general public and list members - thus the
forum is content-restricted, thus there's an editor, yadda yadda yadda
we know the rest.

However, for public lists I think they would all argue that a signup
is an integral requirement for the operation of the list in order to
block spammers.  Because of that there really doesen't exist a
legal 'membership' of the list.  The spam protection is as a matter of
fact why there's no signup to view the archives - because it's not
needed since spammers viewing the archives isn't illegal.

Of course, if the public had to pay a fee or some such to view the
list archives, that would be different.

Otherwise, her posting to the list is the same whether it appears in
the list posts or the archive, because the signup thing for the list
posts isn't strong enough to constitute the list being non-public.

> If you find this too restrictive, imagine the case of a
> mailing list for
> alcoholics or recovering drug addicts.  The legal context is the same.
> Do you think they would implicitly grant permission for publication of
> their confessions in archives searchable by anyone?

They would have to.  If the recovering alcoholics list (and I think
that such things exist on Usenet) is completely open for anyone to
get posts and to subscribe to, then there's no difference between
a searchable archive and the mailing list.

> TM> She has a legitimate legal basis to demand Google remove
> it. She has
> TM> extremely thin to no basis to demand that the FreeBSD mailing list
> TM> remove it.
> She can demand that the mailing list make its archives accessible only
> to members of the list,

Since the mailing list membership is everyone on the Internet
(since anyone can post to it) and the archives are already
world-accessible, this condition already exists.

> and she can demand that her posts be removed
> from the archive if she leaves the list.

How do you define leaving the list.

> In other words, she must grant
> permission for an extension of access to her posts beyond the
> unavoidable access implicit in joining the list (access by
> other current
> list members).

No, this is just manufacturing on your part.  "current list members"
where is that coming from?  Since when do actions in a public forum
have a time limit on them?  If any of this were even close to true
then no library could archive microfilm of any newspapers.

> TM> You seem to think that it's a Good Thing to have people who run a
> TM> mailing list and run archives of that mailing list to
> spend all their
> TM> time digging though old files just because some idiot got ants in
> TM> their pants, when there's no solid legal basis for it.
> I think it's a good thing for people who run a mailing list to be
> extremely careful about what they do, lest they be sued and closed down
> for their carelessness.  There is indeed a solid legal basis for this,
> and any list the size of this list should already be supported by
> professional legal counsel to make sure that it doesn't do anything it
> might later regret.

Uh huh.  Sure.  Has there ever been a public mailing list that was
truly public - with no editorial control over the posts, and no
restrictions on access - that has been required by court order to
be shut down?

Anybody or anything can be sued.  However not anybody or anything
can be successfully sued.  If and when the day ever comes that the
list manager is sued, that is the day that the list manager needs
to start spending money on lawyers.  BSD has been sued by
far better lawyers than any that Valerie can afford, and the last
time it happened we won.

> I'm interested in FreeBSD, and this is the only available form of
> support for the OS (which is perhaps the greatest drawback to using
> FreeBSD, particularly in a corporate or mission-critical environment).

No, there is also the FreeBSD Usenet group which is equal or greater in
volume of
traffic than this mailing list.  And Google archives it! ;-)


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