Internet: October 2007 Archives
The Queensland e-courts website has just been updated to reflect that the notice of discontinuance in the 2Clix v Whirlpool action has finally been filed. The notice was apparently filed on the 24th -- I'm not sure why it took so long to show up on their website.
Huzzah!
Huzzah!
Regular readers will remember some earlier dramas when accounting software vendor 2Clix Australia Pty Ltd sued whirlpool.net.au owner Simon Wright for injurious falsehood, and then shortly thereafter announced they would abandon the lawsuit.
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
Several news websites (including ITwire and idm.net.au) are now reporting that 2Clix has or is about to go into voluntary administration, although the ASIC website doesn't yet reflect this.
You didn't have to be Nostradogbert to see this one coming -- 2Clix's reputation would have been utterly shot as a result of the lawsuit. At the time, I said:
"Lawsuits are a short-sighted and self-destructive way of dealing with criticism," said EFA Chairperson Dale Clapperton. "As McDonalds and many other companies have learned, suing your critics will cause much more damage and bad publicity than the criticism itself ever would."Here we have the result. An own goal indeed.
This has got to be, without exception, the absolute dumbest browse-wrap licence I've ever seen. For those not familiar with the term, a 'browsewrap' licence is a purportedly contractual agreement that many websites like to pretend that you have agreed to be bound by, simply by using their website. e.g. 'By using this website, you agree we own your soul.'
This particular browsewrap agreement is on the website of Dozier Internet Law PC. Amongst other things, it claims that viewing the HTML source of their website is an infringement of copyright. As they purport to be 'The Lawyers for Internet Business', they ought to know that the enforcability of browsewrap agreements is a very grey area, ought to know that many of their intellectual property claims are insane, and generally ought to know better.
Then again, this is the same law firm who has threatened to sue people for posting copies on the Internet of cease-and-desist nastygrams which they've sent out.
Other coverage of this issue is at Slashdot, Techdirt, and the Consumer Law & Policy Blog.
Here's part of one of the stupidest clauses:
This particular browsewrap agreement is on the website of Dozier Internet Law PC. Amongst other things, it claims that viewing the HTML source of their website is an infringement of copyright. As they purport to be 'The Lawyers for Internet Business', they ought to know that the enforcability of browsewrap agreements is a very grey area, ought to know that many of their intellectual property claims are insane, and generally ought to know better.
Then again, this is the same law firm who has threatened to sue people for posting copies on the Internet of cease-and-desist nastygrams which they've sent out.
Other coverage of this issue is at Slashdot, Techdirt, and the Consumer Law & Policy Blog.
Here's part of one of the stupidest clauses:
Dozier Internet Law, P.C. has a lot of intellectual property on our site. For instance, we are the creators of all of the text on this website, and own the "look and feel" of this website. We also own all of the code, including the HTML code, and all content. As you may know, you can view the HTML code with a standard browser. We do not permit you to view such code since we consider it to be our intellectual property protected by the copyright laws. You are therefore not authorized to do so. In addition, you should not make any copies of any part of this website in any way since we do not want anyone copying us. We also do not allow any links to our site without our express permission, except that you must maintain the link in our Copyright Infringement Warning Button as it is designed. The name "Dozier Internet Law, P.C.", and similar derivatives of it, constitute our trademark and servicemark, and should not be used in any manner without our permission.So, I guess they'll now be suing me for:
Go on, I dare you.
- Copyright infringement for viewing their HTML. Which, incidentally, is not valid HTML, and isn't written particularly well either. e.g. <meta name="KEYWORDS" content="keywords go in here">;
- Linking to their website without their express permission. Good luck with that;
- Copying part of their website, because they don't want anyone copying them. I wonder how they feel about criticism, ridicule and parody?; and
- Using their name without their permission. I'm shaking in my shoes. Maybe if i say their name backwards, I can banish them to some other dimension?
After a seminar today run by Peter Black on the use of 'Web 2.0' in teaching, Peter and Jessica Coates tried to convince me that Facebook is not, in fact, crap, and is substantially better than Myspace; which is presumably, impliedly, crap. Unless you're a ditzy teenager whose life ambition is to be on Paris Hilton's friends list and thereby gain some kind of incredibly lame validation. But I digress...
Earlier in the seminar, I'd voiced my objection to the possibility that students might be compelled to become members of some of these 'Web 2.0' services to do mandatory assessment items in some subjects. This would, of course, require those students to enter into a contractual relationship with those service providers, with associated legal liability and privacy risks. It might also constitute third line forcing, which is per-se illegal in Australia, but that's a different issue.
The concerns I raised were largely dismissed as paranoia. So, I got to thinking, exactly what is in the applicable contracts for a service like Facebook? In this posting, I dissect the Facebook 'Terms of Use'... You know, that massively long (over 6000 words), complicated, contractual document that nobody ever reads when they sign up.
Earlier in the seminar, I'd voiced my objection to the possibility that students might be compelled to become members of some of these 'Web 2.0' services to do mandatory assessment items in some subjects. This would, of course, require those students to enter into a contractual relationship with those service providers, with associated legal liability and privacy risks. It might also constitute third line forcing, which is per-se illegal in Australia, but that's a different issue.
The concerns I raised were largely dismissed as paranoia. So, I got to thinking, exactly what is in the applicable contracts for a service like Facebook? In this posting, I dissect the Facebook 'Terms of Use'... You know, that massively long (over 6000 words), complicated, contractual document that nobody ever reads when they sign up.
Continue reading Dissecting the Facebook 'Terms of Use'.
As I blogged about earlier, the judgment in Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 was handed down this afternoon. It is significant for many reasons, including that it is the first precedent in Australia (or elsewhere, so far as I know) dealing with racial vilification/discrimination in forum postings, and because it's the first 'proper' case I've argued in court (not counting two trips to the small claims tribunal against landlords (both won), a minor debt claim against a former employer (won), and a speeding ticket that I once tried to beat (lost)...).
The Collective won, but not for the reasons I was hoping. The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived. Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made. As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.
However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned. On this point, Gyles J said at [35]:
Gyles J made some comments in the judgment which are somewhat worrying, such as:
The end result is that the Collective won, with Silberberg to pay their expenses. But the result could have been very different. Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.
Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.
Where to from here? Silberberg could appeal. Or he could sue for something different. I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case. I don't like his chances.
EFA has issued a press release which will be available here later tonight.
The Collective won, but not for the reasons I was hoping. The Collective's case was that it had no knowledge of the offensive material until a letter from Silberberg's solicitors arrived. Gyles J held that an unidentified administrator of the forum did have knowledge of one of the two offensive postings, from a time roughly six months after it was made. As noted by Gyles J at [34], if the proceedings had been brought in defamation or copyright infringement, that would likely be sufficient to establish liability.
However, under s 18C of the Racial Discrimination Act 1975 (Cth), an act is only unlawful if done because of the race, colour or national or ethnic origin of the person or group concerned. On this point, Gyles J said at [35]:
However, there is substance to the argument that the failure to remove the offensive material has not been shown to have any relevant connection with race or ethnic origin of the applicant or indeed any other Jewish person as required by s 18C(1)(b) of the Act. The failure of the unidentified administrator to remove the Second Message on and after 1 July 2006 was the clearest case of failure to act. I cannot conclude that such failure was attributable, even in part, to the race or ethnic origin of the applicant. If Dwyer [the president of the Collective] is accepted, the message should have been removed if its offensive nature was understood. However, failure to do so is just as easily explained by inattention or lack of diligence. Drawing the necessary causal connection would be speculation rather than legitimate inference. The same reasoning would be more obviously applicable to the systematic failure to monitor and remove offensive postings. Absent the necessary causal connection there is no breach of Pt IIA [of the Racial Discrimination Act] by the Collective.Seems to be a judicial application of Hanlon's razor - 'Never attribute to malice that which can be adequately explained by stupidity.'
Gyles J made some comments in the judgment which are somewhat worrying, such as:
I'll muse on those quotes sometime in the future.
- 'the conduct of the Forum in permitting the posting of anonymous messages that are automatically available for display without prior checking is entirely the choice of the Collective' (at [11]); and
- 'The Collective chose to conduct an open anonymous forum available to the world without any system for scrutinising what was posted. The party controlling a website of such a nature is in no different position to publishers of other media.' (at [34])
The end result is that the Collective won, with Silberberg to pay their expenses. But the result could have been very different. Silberberg lost against the collective because he sued for racial discrimination, and he couldn't prove that anything the Collective did (or failed to do) was motivated by his Jewish background.
Had Silberberg sued for defamation, he probably would have won -- Gyles J held that the Collective published the offensive messages, and that their anonymous admin had actual knowledge of one of the offensive messages, which would have negated a defence of innocent dissemination.
Where to from here? Silberberg could appeal. Or he could sue for something different. I'm reliably informed that Silberberg is saying he will now sue the Collective for defamation, based on the same events in this case. I don't like his chances.
EFA has issued a press release which will be available here later tonight.
