Cyndi, I think you and I are talking about separate things. I'm talking on
a purely theoretical level. You seem to be talking about your own
experience. Both of these views are equally valid - and your view is
probably more valid for those of us currently running lists.
But, I'm still worried about this (possibly phantom) risk that we may face
if we end up defending in court how we run our lists.
Having said that, let me address some of your points:
At 1:31 PM -0800 on 3/27/97, Cyndi Norman wrote:
> From: "Kent S. Larsen II" <email@example.com>
> I agree with Alan's comment that in the case presented yesterday, the
> listowner may be at risk because the list is hosted on a state university
> machine. In this case, are you the listowner, or is the university, or is
> the state?
> I doubt it. I ran my list for 6 years on a computer at the University of
> Calif at San Diego. There was never once any implication that I had to
> comply with any rules particular to UCSD or the state of Calif. And my
> list talks a lot about lawsuits and government abuse. I dont believe we
> ever talked about UC, but we certainly could have. (I have since moved the
> list to a private ISP at the request of UCSD since I am no longer a grad
> student there.) I think the only thing they cared about was bandwidth.
Like many list managers, you have been fortunate.
I must not have made my point carefully enough, however. I'm not talking
about what has happened in practice. I am talking about what might happen
were issues like this taken to a court. Its certainly possible that a court
might say that an email discussion list funded by a University is a public
forum, and therefore any participant can't be censored.
> And how is running a list at UCSD different from, say, my department's
> newsletter (paid for by state funds)? It has an editor and items are
> considered for inclusion based on topicality, length, content, etc. Even
> as a member of that dept, I could not get whatever I wanted printed. Given
> the nature of the newsletter, pretty much anything anyone wanted to write
> would indeed get printed, but the editor always had the last word.
It depends on what kind of a list it is! If it is an unmoderated
*discussion* list then its a very different animal. In an unmoderated
discussion list you have chosen not to exercise any editorial control (or
at least very little) - a fact that your subscribers may depend on.
> Many state-funded universities publish literary or academic journals. They
> have the right to reject anything submitted to them.
If your list is an edited journal in stead of a discussion list, then you
have the same right, IMO, as they do (although I still wouldn't be
surprised to see it end up in court - or the court rule against you and
against the way I think).
> Another question might be does the ISP or the state or the university, etc
> etc, have any say over what must go through the list or what can't go
> through the list? This is completely different from the original question
> of rights of subscribers.
I agree, it is a different question, but I think it is one that can be
solved more easily - just read the terms of the contract you have with your
ISP that concern running mailing lists <big grin, knowing that probably no
one has such a thing!>
>If UCSD did take an interest in the content of
> my list, they probably would threaten to shut it down if I didnt comply
> (and they could). But they would be doing this for reasons internal to
> them, not because of potential liability if I refuse to allow certain
Why do you say that? Are you saying the University will act this way
regardless of potential liability, or are you saying that the potential
liability doesn't exist?
Please understand, I am not claiming that I know that the potential
liability exists, I am saying it seems likely to me, but that I don't know,
and I don't have any evidence that anyone knows.
Does anyone know of relevant legal opinions that would give us an
indication of where we stand?
One of my reasons for persuing this subject is to try and get exactly this
- some kind of proactive (i.e., without going to court) resolution as to
the legal status of the listowner. Perhaps this will be the basis for some
law that will make this clear. Perhaps the result will be a document that
can help the judge that eventually does get this case (I can almost
guarantee this will happen eventually!).
> Generally, the subscribers don't actually pay money for the right to join,
> but they are contributing to the list (perhaps this is a form of payment?
> They are giving the listowner stuff to publish - and magazines and
> newspapers often have to pay for material to publish).
> You obviously havent tried to sell something youve written :-).
Perhaps you didn't notice my sig :-). I work for North-South Books. We
publish children's books. In my career I've also worked at a newspaper and
spent a bit of effort studying the industry. While its true that I haven't
tried to sell something I've written, I do know a little about the process.
:-) <no offense meant or taken>
> magazines and newspapers do not pay their contributers. Only the ones
> turning a profit do...and not all of them (granted, their circulation is
> far higher than all the others put together). Most places pay in copies of
> the issue the submission appears in. Also, people do not get paid for
> publishing in scientific or academic journals (as far as I know).
I'm curious about why you seem to concentrate on scientific & academic
journals. Are they a more appropriate comparison for some reason that I
can't see? I don't think they compare very well to unmoderated discussion
groups - but I do think they would compare well to a *distribution* list.
> I am not getting anything from my list, beyond personal satisfaction. My
> subscribers are not providing me with a service or payment beyond the
> support and information any other subscriber recieves. Nor do I get
> payments from elsewhere (such as advertisers).
What if all your subscribers stopped sending posts to your list? My point
was that this might be construed by a court as a service, and possibly even
as payment, if the court interpreted it that way.
I'm certainly not saying that a court will do it, just that such an
interpretation is concievable IMO.
> I have no obligation to my subscribers, other than those I choose to take
> on (and moral or ethical ones). I get no money at all for running this
> list and webpage; in fact it costs me $10/month. Obviously, I get a lot
> out of this, or I wouldn't do it, but it's not anything tangible.
Just because you don't get anything tangible from the list, doesn't mean
that you don't have an obligation to your subscribers. And again, I don't
know that you do. But I don't know that you don't.
> So perhaps there is a kind of implied contract between the listowner and
> the list members. Your list rules are some of the terms of this contract.
> The contract also has implied rules - one of which may be the right of the
> list member to post to the list.
> Nope, sorry, no way. I don't even have an obligation to keep someone on
> the list. I have terminated people for violating my rules.
How do you know that a court will agree with you?
Thanks for responding Cyndi. I hope that you are right.
But for me, I'd like to know where I stand with a little more certainty. Or
I'd like to make it clear somehow.
Kent S. "Kip" Larsen II; KLarsen@panix.com or KLarsen@NorthSouth.com (work).