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(March 1997)
 

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Subject: Re: First Amendment Rights?
From: matt @ netmeg . net (Matt Magri)
Date: Thu, 27 Mar 97 15:15 EST
To: list-managers @ GreatCircle . COM

Kent S. Larsen II <klarsen@panix.com> wrote:
>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?

It certainly has the potential to muddy the waters. It's my
understanding that there are private companies that will host lists as
a public service, so maybe that's a route to try for those who are
particularly concerned.

>The issue of ownership may also come up in other places. For example, if
>you run the list on your ISP, could it be considered to be your ISP's list?
>I don't believe so, but what if you got into a conflict with your ISP over
>the list and ended up in a court with a judge poorly acquainted with the
>Internet? (maybe this is a red herring, but it doesn't seem far fetched at
>all!)

It's hard to imagine a scenario where an ISP would care about who you
let onto your list or not. All I can come up with is:
    a) someone complained a lot to the ISP about being kicked off the list
    b) the ISP was an idiot
    c) the list was being provided for free and/or with the understanding
       that the ISP could make changes like this.

Personally, even if I was providing a free home for a list it would be
under the understanding that decisions about the list were totally up
to the list manager. Otherwise I'm making myself responsible for
whatever decisions the LM makes. Why bother? (unless "b" applies ;-) ).

>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).

People also often have to pay to receive a magazine or a newspaper, so
it seems pretty likely that we're talking about a different kind of
animal here. It's more like you own the place where folks are coming
together to discuss things. You don't own what was said (unless they
agree to that ahead of time) and you can decide who can and can't come
in.

>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.

If they follow the list rules, you mean? I dunno. I guess if you put a
"The list manager reserves the right, but not the obligation, to remove
anyone from the list if, at the sole discretion of the list manager,
that person is too disruptive to the list." Amateur lawyerese. That might
even work for a list hosted on a state university machine since it makes
the nature of the list access clear.

>If you place a list member on 'ignore' you may be breaking this contract,
>giving the list member grounds to sue you.

It's not clear what the damages are in this case. They didn't pay for
anything, after all. At any rate, I wouldn't think it would even be
possible unless you made some the-list-is-supported-by-the-state
argument. Even that's far from clear-cut.

>If I'm right, however, it would be wise for listowners to spell things out
>in a welcome document, and try to keep the welcome document up-to-date with
>all rules adopted.

Even if you are wrong, it's a nice thing to do for new and potential
subscribers.

Matt

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From: "Kent S. Larsen II" <klarsen@panix.com>
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From: meo@schoneal.com (Miles O'Neal)

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