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[Anthony Atkielski]

Ted Mittelstaedt writes:

TM> Clearly I think Anthony is saying in his posts to me that the
TM> list managers should e-mail legal boilerplate to every subscriber
TM> that they would then agree to, which would basically state that
TM> the poster waives their copyrights if they post.

Approximately, yes.  A better agreement would be one that requires that
the subscriber license his posts for archiving and public access and
agree that he will not consider this an invasion of privacy.
Relinquishing copyright is a huge step and it's pretty rare to ask
anyone to do it.

An alternative is to make the archive accessible only to current
members, and to purge posts from any member who leaves the list.
There's still a bit of risk in that but it eliminates most potential
objections.

TM> The problem I see is that doing this creates a
TM> contract, which is one of the issues we are disagreeing on.

A contract exists already.  This just formalizes the terms.

TM> It also changes the signups on the list to that of an
TM> access-controlled forum which means that the owners of the forum are
TM> exercising editorial control, meaning they are republishing posts to
TM> the list, which means they have to obtain rights to do this from
TM> each poster when that poster posts.

Requiring that a person subscribe to receive messages is already access
control.

If you don't want any access control, you must go to an open forum
format and eliminate the mailing list.  Then anyone can read and anyone
can post ... like USENET.

TM> He is saying that since the act of signing up for the list creates a
TM> contract between the list owners and the poster, the list owner
TM> should issue a contract to the signupee that outlines their (lack
TM> of) rights if they post.

The act of doing just about anything with another person or organization
often creates a contract of some kind.  Making it explicit only helps to
protect both parties from misunderstandings and litigation.

TM> I disagree that the act of signing up for the list creates a
TM> contract, since the list is publically available without signup,
TM> and espically since the list can be posted to by the general
TM> public without signup.

It's impossible to receive the list by e-mail without signing up. A
person who signs up has every reason to believe that only other people
who have also signed up will receive his posts, since that's how mailing
lists normally work. He also has every reason to believe that his posts
will be ephemeral, existing only as e-mail messages, since again that is
how mailing lists work. Archiving messages without telling subscribers
about it and requiring them to agree with it only invites trouble.

It should be kept in mind that when geeks meet lawyers, the geeks always
lose.

-- 
Anthony