At 11:13 PM 11/9/96 -0600, Jim Choate wrote:

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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)