Re: FW: Dr. Vulis is not on cypherpunks any more [RANT] (fwd)

Hi all,

There is one important legal aspect which the operator of the Cypherpunks
mailing list has opened themselves up for with this action. In short they
have now opened themselves up for defamation and liable suites by imposing
an editorial policy on the contents of this list (1).

This opens up the potential, for example, for Tim May to sue the operator of
the Cypherpunks mailing list now for posts from users (even anonymous ones)
which defame or otherwise liable his character, reputation, or ability to
pursue income in his chosen field. In short the operators of the list
becomes publishers and distributors of the material. It is the legal
difference between a bookstore and a book publisher. 

Censorship is censorship, irrespective of the source of the limitation.
Free expression is impossible in an environment of censorship. The right to
speak not only implies a right to not speak, it also implies the right to
emit complete mumbo jumbo. The actual content of the speech is irrelevant.

The Constitution guarantees freedom of speech and press. This does not imply
in any way an abrogation of responsibility by the party speaking or
distributing it. Only that they would not have limitations on their actions
imposed by the federal government.

				ARTICLE I. 
 
	Congress shall make no law respecting an establishment of religion, 
or prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to assemble, 
and to petition the Government for a redress of grievances. 

And just to make shure it is clear, the right to put something on the paper
(ie speech) is distinctly different from being the one doing the actual
printing.

I have argued in the past that this list is a defacto public list because of
the way it is advertised and to the extent it is advertised. All the protests
by the operator to the contrary will not convince a court.

Hope you folks have a good lawyer.

(1)  ;login:, Oct. 1996, V21N5, pp. 27


                                                    Jim Choate

This is not a comment on the Vulis-Gilmore issue, about which much too much
has already been posted here. But I believe Jim Choate is quite wrong about
a point he makes:

At 9:27 PM -0600 11/6/96, Jim Choate wrote:
>Hi all,
>
>There is one important legal aspect which the operator of the Cypherpunks
>mailing list has opened themselves up for with this action. In short they
>have now opened themselves up for defamation and liable suites by imposing
>an editorial policy on the contents of this list (1).
>
>This opens up the potential, for example, for Tim May to sue the operator of
>the Cypherpunks mailing list now for posts from users (even anonymous ones)
>which defame or otherwise liable his character, reputation, or ability to
>pursue income in his chosen field. In short the operators of the list
>becomes publishers and distributors of the material. It is the legal
>difference between a bookstore and a book publisher.

So, if a bookstore ejects a drunken lout who is disturbing the other
patrons, is the bookstore suddenly reclassfied as a book publisher? By your
logic, you seem to think so.

So, if I have a party at my house and limit who I invite, or eject someone
who is misbehaving (insulting my other guests, barfing on the floor,
smoking when I tell him not to, whatever), you are saying that I "open
myself up for libel suits" by other guests who don't like the things they
hear from others at my party?

So, anyone who exercises ownership rights to his property suddenly becomes
legally responsible for the alleged misdeeds of anyone visiting his house?

Could you cite some cases supporting your point of view?

(I can think of some peripherally-related cases, such as cases where a bar
has been held liable (note: "libel" is not the same as "liable") for
serving too many drinks to someone already drunk. I happen to disagree with
this outcome, strongly. However, it is far from establishing that a bar
which enforces certain rules ("no shirt, no service") and which has an
entire class of employees hired to _eject_ patrons has suddenly become
liable for slanderous comments made by customers. And so on.)


>I have argued in the past that this list is a defacto public list because of
>the way it is advertised and to the extent it is advertised. All the protests
>by the operator to the contrary will not convince a court.
>
>Hope you folks have a good lawyer.

Pseudo-law on this list is really getting out of hand.

(By the way, I include my ideological usual-ally Black Unicorn on this
point. I'm chagrinned that he so quickly and on so many issues has made
statements about filing lawsuits--for defamation, for "false advertising"
(!!!!), and so on. Not only is this counter to the views many of us hold--I
think I sense the zeitgeist of the list--but it is supremely ineffective,
as none of these threatened lawsuits ever seem to materialize, thankfully.
Using the threat of a lawsuit as a rhetorical debating strategy is not
effective.)

--Tim May

"The government announcement is disastrous," said Jim Bidzos,.."We warned IBM
that the National Security Agency would try to twist their technology."
[NYT, 1996-10-02]
We got computers, we're tapping phone lines, I know that that ain't allowed.
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

> At 9:27 PM -0600 11/6/96, Jim Choate wrote:
> >Hi all,
> >
> >There is one important legal aspect which the operator of the Cypherpunks
> >mailing list has opened themselves up for with this action. In short they
> >have now opened themselves up for defamation and liable suites by imposing
> >an editorial policy on the contents of this list (1).

Disagree.

> >
> >This opens up the potential, for example, for Tim May to sue the operator of
> >the Cypherpunks mailing list now for posts from users (even anonymous ones)
> >which defame or otherwise liable his character, reputation, or ability to
> >pursue income in his chosen field. In short the operators of the list
> >becomes publishers and distributors of the material. It is the legal
> >difference between a bookstore and a book publisher.

There is a very distinct difference between ejecting disruptive influences
and conducting one's self as a publisher and distributer.

Though these are issues which will end up before a jury (should it ever
get that far) the fact that the list owner might have booted off a
disruptive entity after repeated warnings is hardly going to meet the
threshold to throw Mr. Gilmore into the catagory of "publisher."

> Pseudo-law on this list is really getting out of hand.

We need more lawyers.  That should replace the pseudo-law with real law.

--
Forward complaints to : European Association of Envelope Manufactures
Finger for Public Key   Gutenbergstrasse 21;Postfach;CH-3001;Bern
Vote Monarchist         Switzerland

TCM
>(By the way, I include my ideological usual-ally Black Unicorn on this
>point. I'm chagrinned that he so quickly and on so many issues has made
>statements about filing lawsuits--for defamation, for "false advertising"
>(!!!!), and so on. Not only is this counter to the views many of us hold--I
>think I sense the zeitgeist of the list--but it is supremely ineffective,
>as none of these threatened lawsuits ever seem to materialize, thankfully.
>Using the threat of a lawsuit as a rhetorical debating strategy is not
>effective.)

heh, I find Unicorn's zeal to sue anyone for anything quite comical
and suggestive of a high degree of immaturity.

but as to your point, the recent Forbes article on Bidzos makes it
clear that weilding a legal sword alone can be used quite
shrewdly, strategically, and effectively. 
the article is quite interesting in how it suggests
RSA was largely built on threatening to sue people. of course this
is slightly skewed, because RSA has done things like software
development that the article didn't mention.

actually the lesson seems to be that if you have a software
patent, the law can be your friend (esp. if you are a business), 
but if you want to sue someone who calls you names, the law is not very
accommodating. sorry, Unicorn, maybe you can lobby to fix this
little deficiency. <g>

On Thu, 7 Nov 1996, Vladimir Z. Nuri wrote:

> TCM
> >(By the way, I include my ideological usual-ally Black Unicorn on this
> >point. I'm chagrinned that he so quickly and on so many issues has made
> >statements about filing lawsuits--for defamation, for "false advertising"
> >(!!!!), and so on. Not only is this counter to the views many of us hold--I
> >think I sense the zeitgeist of the list--but it is supremely ineffective,
> >as none of these threatened lawsuits ever seem to materialize, thankfully.
> >Using the threat of a lawsuit as a rhetorical debating strategy is not
> >effective.)
> 
> heh, I find Unicorn's zeal to sue anyone for anything quite comical
> and suggestive of a high degree of immaturity.

How ever you may find it, it is the method of choice in the United States
for resolving disputes.  As for my zeal to sue, whom have I sued?  I've
entered into a settlement for a copyright dispute with one list member,
who has since found other outlets for spouting non-sensical rants..

I find that people who are being unreasonable often stop when they realize
a cost might be attached.  It quickly ends the reign of the spoiled brat 
when daddy might have to hire an attorney.  If am I to be demonized for
using the system, so be it.  Until it is changed I too live in the real
world.  As for debating strategy, it has been long clear that no debating
strategy, effective or not, will have any impact on the typical, and
increasingly common, cypherpunks "Loon."

I dislike the legal system in the United States.  If it can, however, be
used to deter loons from spouting absolute nonsense where no other method
has been effective (I believe that both the recent crypto snake oil and
totally contentless rants of a specific poster are a good example) then so
be it.

> but as to your point, the recent Forbes article on Bidzos makes it
> clear that weilding a legal sword alone can be used quite
> shrewdly, strategically, and effectively. 
> the article is quite interesting in how it suggests
> RSA was largely built on threatening to sue people. of course this
> is slightly skewed, because RSA has done things like software
> development that the article didn't mention.

I think many people fail to realize that the right to sue is in many ways
an entitlement.  It is allocated to those who government wishes to protect
and can be wielded because it is the government's wish that a certain
class of individual be so empowered.  In many cases, liberal trash about 
corporations being the only entities who can afford good legal help
aside, it is the only recourse for the average individual.

If the threat to sue is too powerful for your taste, write your
congressman.  It is a tool, no more no less than crypto.  It may not be
the nicest thing in the world to threaten to sue someone, but I have never
threatened anyone with legal recourse who was not given an opportunity to
correct their conduct first.  I've also not threatened anyone with legal
action when no viable case existed.

> actually the lesson seems to be that if you have a software
> patent, the law can be your friend (esp. if you are a business), 
> but if you want to sue someone who calls you names, the law is not very
> accommodating. sorry, Unicorn, maybe you can lobby to fix this
> little deficiency. <g>

1> I don't do lobby work.
2> I don't believe that personal insults fall within the jursidiction of
government (nor should they).

Statements which, on the other hand, cause actual harm to the reputation
of an individual, and where said individual can substantiate that harm,
are, and in my view should be, actionable.  Take note, "Vlad" and
"Dimitri," you stray very close to this boundary.  I've noticed, despite
your bluster, that personal insults from you directed to a specific
cypherpunk have much ebbed since a legal fund began to emerge.

Look folks, you cant tell someone that the neighborhood doctor is on
herion and expect nothing to happen.

You can't tell consumers that your crypto product is absolutely secure
when it isn't and expect nothing to happen.

I submit, cypherpunks, that in this day and age of archived mailing lists
and instant key word searches, suits for defamation and slander will
become MORE important, not less.  Three years from today a prospective
customer of one of you might call up the Alta Vista page and find some
blather about you being on Lithium and decide to give his contract to Bill
instead.  Silly?  Perhaps to the list member who has the context of the
discussion from which to judge the statement.  Not necessarily to the
prospective client, who may not know any better.

Not everyone has been so prudent to protect themselves with a pseudonym
such as I have.  Unfortunate in my view.  I don't need to resort to the
legal system to protect my reputation.  This is by design.  This is as
cypherpunks would have it, or so I would hope.

Mr. May quite rightly points out that resort to the legal system is
somewhat inconsistent with the creed of cypherpunks (if such a thing
exists).  Technology should be used instead.  On this point you will get
no argument from me, I practice just this policy.  Unfortunately, last I
checked, there are perhaps 3 active nyms on the list (Does Pr0duct
Cypher even exist anymore?) and filtering is hardly as common as it should
be.  (At least, judging from the number of complaints about "Vlad" and his
ilk).

Until the rest of you adopt nyms the legal system is all you've got.

--
Forward complaints to : European Association of Envelope Manufactures
Finger for Public Key   Gutenbergstrasse 21;Postfach;CH-3001;Bern
Vote Monarchist         Switzerland