Current Shareware 1994 January/SHAR194.ISO/textfile/publicat.zip/HOMOLKA.TXT

Text File | 1993-09-22 | 65KB | 1,452 lines

Homolka/Electronic Speech Thread


A wide-ranging thread centring on the legality of discussing the Homolka trial
in light of the publication ban on the details of the case.

These messages remain the property of the posters.





          Sunday, 1 August 1993 9:44:39 PM
          Tech Law Item
   From:          Stuart Brannan
   Subject:       Electronic Publication Ban
   To:            Politics
                  Tech Law
                  Mary Williams
Suddenly this has become interesting.  The recent speculation that certain
messages regarding the Hololka trial have been deleted from MAGIC after the
article in the Star raises the question of whether BBS discussion is captured
under the publication ban applicable to the court proceedings.

I have always considered BBS exchanges to be analagous to having a loud
discussion in a public place.  On the face of it, this isn't publication.
Just the voluntary exchange of views among individuals, each of whom brings
certain unique aspects to the discussion.

However, the line may be somewhat fuzzier than that.  Because, whether you
accept the legitmacy or the merits, the intent of the publication ban was to
limit the public's knowledge of the details of the St. Catherine murders in
order to ensure that Paul Teale could be assured of a fair trial.  Any public
discussion of these details will, to some extent, reduce the probability that
the issues will be presented free from bias at that trial.  On this basis, the
"public" aspects of BBS discussions would appear to be problematic.

Consider whether the ban applies to the Star:  clearly the answer is yes, that
was the intent.  What if the Star didn't print the prohibited information, but
rather hired a number of cars with loudspeakers and drove around the city
reading the articles to passers-by.  Would that be an infringement on the ban?
I think that it would, because the medium of dissemination should not change
the fact that the information cannot be publicly disclosed.

What then is the substantive difference between broadcasting through
loudspeakers, and posting a notice on MAGIC.  Not much, I'd say.

So there may be a plausible argument that MAGIC is covered by the ban.
Perhaps that was the reason for Mary's "Lurker's Poll" a few weeks ago.  If we
knew how many people were likely to read the message, we would be able to
assess whether MAGIC really was a "public" dissemination of  information, as
opposed to a discussion among private individuals.  (Mary, is *that* what you
were up to?)


Finally, let me say that this whole argument serves to show the difficulty of
controlling the dissemination of information in an electonic age.  The lines
between private and public discussions don't make sense anymore (if they ever
really did), and the costs of owning the hardware necessary to establish a
communications network are now so small that the courts can no longer rely
upon a ban on broadcast media to be effective in stopping the dissemination of
information.   To be truly effective, the court would need to order a
"discussion" ban, which is certainly a gross infringement on our personal
liberty.  So, it would seem to me that since nothing short of a "discussion
ban" would be effective, then there is no justification for any ban at all.

Stuart



          Monday, 2 August 1993 3:33:52 PM
          Tech Law Item
   From:          John P. Sazoom
   Subject:       Re: Electronic Publication Ban
   To:            Tech Law
I don't think it should be covered by the ban.  Right now, I'm expressing my
opinion, and in Canada, we have freedom of expression...otherwise, the law
would require an Admin/Sysop to control what every user says...on a system
like this...I think it's a bit much.
φhn



          Monday, 2 August 1993 9:57:46 PM
          Political Forum Item
   From:          Geoff S. Heinricks
   Subject:       Homolka-Star-Sun et al
   To:            Politics
Skip L. Desmond says...
Hey, FRANK magazine couldn't dream this shit up.

As one of the main Frankster's here in Toronto, I can say we sure couldn't.
Some may have noticed that the Star and Sun only got after the story (appeared
last Friday/Saturday I think) of Homolka's bar cruising after  it appeared in
Frank 146.

Cheers...and as always, Frank can be reached here through my e-mail box.

∙ Geoff




          Monday, 2 August 1993 10:36:25 PM
          Tech Law Item
   From:          John Stevenson
   Subject:       Re: Electronic Publication Ban
   To:            Tech Law
                  Politics
                  Stuart Brannan
Here we are, looking straight at another case where we don't really know what
"publication" means anymore when it comes to electronic networks. No surprise
there. What little I know about liable law tells me is that "publication"
means any discussion with another person, as well as what we might think of as
"publication" in the media sense.

But that's not really the issue - the fact is that the state can't effectively
control electronic publication. I haven't come accross any discussion of the
trial in my net-travels, but lets just pretend that someone has been talking
about trial details on Usenet. Now, who is going to stop them? Many Usenet
confs are unmoderated. Sure, maybe the local sysop of the board where I get
the info could delete the messages or the whole conf. No prob - I just call a
US freenet or the WELL and I can get the info.

Have I broken any law by getting the info? Well, I haven't actually published
anything, so I guess not - I just read it. Did the poster break the
publication ban? Probably, but if they're in the States using an anon posting
service, which is easy to do, they'll never be caught. So how do you stop it?
Sounds to me like, right now, you can't.

JS


          Monday, 2 August 1993 11:12:13 PM
          Tech Law Item
   From:          Stuart Brannan
   Subject:       Electronic Publication Ban
   To:            Politics
                  Tech Law
Most of the discussion on the issue appers to hinge on the fact that the
messages posted a) were not made by someone with direct knowledge about the
the court proceedings, and b) were clearly labelled as not having been
verified.  As a result of these two factors, most of you have concluded that
electronic publication on BBS's is not covered by the ban.

This doesn't address the central question of whether there is a fundamental
difference between BBS's and conventional publication.  Suppose that the Star
ran a series of articles providing detailed speculation regarding the case.
Even if they made the same disclaimers ("a" and "b" above), I suspect that a
certain judge might be extremely unhappy with them and might find some way to
construe this act as being in violation of the ban.

Like it or not, I think that the law might not share your characterization of
these discussions as being private, and therefore outisde the ban.

Stuart


          Tuesday, 3 August 1993 9:47:33 AM
          Tech Law Item
   From:          David A. Westbrook
   Subject:       Me and My Big Mouth??
   To:            Adults
   Cc:            Imoinda L. Romain
                  Stuart Brannan
                  Politics
                  Mary Williams
                  MAGIC Merlin
                  St. Chuck
                  Andre Park
                  Kevin Omura
                  Tech Law
Well. So here I was minding my own business after a nice long weekend out of
town (it was my nephew's third birthday on Sunday) and I return to MAGIC to
get my mail and see who has been calling me "lazy communist" this week, and
lo! and behold! I've become a kindof celebrity. Why? Because, I admit it, I'm
the one who posted the original "bean spilling" Homolka message, the lengthy
disclaimer of which was apparently published in Saturday's Star. And I meant
what I said about "secret vultures."

But, gosh, this gets even more sordid! Now the original message has been
mysteriously deleted from the back files, prompting endless speculation about
the "legality" of the original post, the nature of BBSs (public media or
glorified conference call?) , pseudo-government conspiracies involving Mary
Williams and Merlin, and who knows what all else. If this is my "15 minutes" I
want my money back! Maybe I should sue Andy Warhol's estate...

What the hell is all the fuss about? It was a rumour that I'd heard from an
extremely questionable string of sources. Yet it turns out after all that at
least four other people on-line admitted having already heard similar stories
from other sources, I was just the first to share this info with you others.
"Inquiring minds want to know," and in the spirit of the "best" schlock
journalism, except without the propagandist headline, I reported to all. But
I'm not in the business of selling bird cage liners, unlike our three dailies,
so you can all keep your filthy money to yourselves. In fact I think you
should all be ashamed for your contribution to unnecessary deforestation. You
can get just as good sensationalist trash on TV and even, as I have shown,
here on MAGIC - 100% of which is recycled and reused!!

Aahh...But am I now to expect "The Big Knock," as they say in Ulster? Will the
police break into my home (after beating my name out of TorStar Inc.) and
mercilessly bludgeon me into revealing my source? Will they be satisfied with
my incarceration for breaking the publication ban, or will they use me to get
to Mr. Big? "Inquiring minds want to know."

Not bloody likely. Imo sez:
ILR> Posting a message on a BBS may be a form of publication, but seen as
ILR> how we are all laypersons and have nothing to do directly or
ILR> indirectly with the court proceedings, I don't see how our postings
ILR> are a violation of any kind.
and that is exactly right. We on MAGIC are not subject to any of the
conditions of the publication ban because:

1) We are not included in the current definition of "media" for the purposes
of the ban (though this may change, and we can thank TorStar Inc. for
prematurely introducing Big Brother to our conversations. I hope they sold one
hell of a lot of papers.);
2) The ban only applies to information released by the news media and people
who were actually in the courtroom. I am neither. I can tell all the lies and
vicious rumours that I want without infringing the conditions of the ban. I
could even broadcast the "news" from "speakers on the roof of my car" if I
wanted (if I had a car) and, while I may be arrested for disturbing the peace
and general obnoxious behaviour (even in T.O.) I still wouldn't be violating
the ban. I would probably be questioned about it, but in the end I would get
in more trouble for making so much noise WITHOUT being a member of the media
or the advertisers (the owners of public information rights) who ARE allowed
to say things in public. In the end I would just be testing my right to
freedom of speech (and no I have no intention of spraypainting the news on
Geoff's house);
3) My alleged source is not traceable to the courtroom at all, hence NOONE in
this chain of rumour violated the ban. There may be moral issues, or even
other legal issues, involved, but they have nothing whatever to do with the
publication ban on evidence from the trial.

If either of these three conditions were different there might be a case.
Otherwise, relax.

Incidently, the Toronto Star is guilty of quoting from my correspondence (to a
private conference no less) without permission and is hence vulnerable to
lawsuit, but I don't want THEIR filthy money either. They are also morally
responsible for quoting me out of context (though this has never mattered to
the schlock-meisters before). Did they happen to mention my arguments IN
FAVOUR of the publication ban? I doubt it very much; aren't they still
involved in an appeal of the ban? This whole story is likely a testament to
the "injustice" of muzzling the legalized propagandists while letting the
general public - God Forbid! - actually talk FREELY amongst themselves! How
will they ever survive without the almighty TorStarInc. telling them what to
think?


          Tuesday, 3 August 1993 9:57:54 AM
          Political Forum Item
   From:          Geoff Herzog
   Subject:       Fwd: Re(2): Homolka Trial Press Ban
   To:            Politics
   Cc:            Adults
                  David A. Westbrook
To those who want to see the message that made David a celbrity -grin-.


Rumour Mill Alert!!!

This is a savage rumour and not intended for the sensitive. Please use
discretion in reading this post and definitely keep it away from small
children. If you don't want to know I suggest you stop reading now and delete
this message.

I cannot vouch for the truth or falsity of this story in anyway. It is being
included in this conference to satisfy the secret vulture in all of us.

The sister of a woman my wife works with has a friend on the St. Catherine's
Police Force (there, how's that for a disclaimer!). Scuttlebutt has it that
Paul and Karla were making snuff films. The police have films of Paul killing
at least one of the girls - Karla operated the camera.

I hope we all feel better now.



          Tuesday, 3 August 1993 7:45:17 PM
          Tech Law Item
   From:          Matt Harrop
   Subject:       Re: Electronic Publication Ban
   To:            Stuart Brannan
   Cc:            Politics
                  Tech Law
                  Mary Williams
The reason I think MAGIC and other online systems should be covered by the
publication ban is because I believe that online systems should be protected
by freedom of the press laws.  If thay are (and they should) then they have to
be treated in a similar maner to other press.  I don't think that sys admins
should be responsible for the specific content of their systems.  They should
be treated more like book store operators.  That is how the supreme court in
the US ruled on a case involving CI$.  The ruled that Compuserve provided a
setting similar to a book store, and that they as such, they were not
responsible for the content of the messages and services that they carry.
If online services were to be treated like book publishers, then they would be
responible for the content of their system.
As it stands, (If such messages were actualy deleted.) I think MAGIC Merlin
made the correct choice.  Even if the law did not specificaly ban a online
service from publishing such information, then the spirit of the law did.
Allowing such messages to stand would have been asking for trouble.  I also
don't think that the existance of loopholes in the letter of the law justifies
breaking the spirit of the law --even if the existance of a loophole eventualy
gets you off.

matt






          Tuesday, 3 August 1993 11:08:15 PM
          Tech Law Item
   From:          Stuart Brannan
   Subject:       Electronic Publication Ban
   To:            Tech Law
                  Politics
   Cc:            David A. Westbrook
What a colourful response David.

DAW> But, gosh, this gets even more sordid! Now the original message has
DAW> been mysteriously deleted from the back files, prompting endless
DAW> speculation about the "legality" of the original post, the nature of
DAW> BBSs (public media or glorified conference call?) ,

These are bad things?

DAW>  pseudo-government
DAW> conspiracies involving Mary Williams and Merlin,

What is a "pseudo-government" anyway? and where is the conspiricy?

DAW>  and who knows what all else.

Nothing else, David.

DAW> Aahh...But am I now to
DAW> expect "The Big Knock," as they say in Ulster? Will the police break
DAW> into my home (after beating my name out of TorStar Inc.) and
DAW> mercilessly bludgeon me into revealing my source? Will they be
DAW> satisfied with my incarceration for breaking the publication ban, or
DAW> will they use me to get to Mr. Big?....Not bloody likely.

I agree, but nobody anywhere has suggested that you would even be questioned,
never mind bludgeoned, for violating the ban, (if that is what you did).
Paranoia, or delusions of grandeur, have set in David.


DAW> We on MAGIC are not subject to any of the
DAW> conditions of the publication ban because:

DAW> 1) We are not included in the current definition of "media" for the
DAW> purposes of the ban

What is the legal definition of "media"?  Does it make sense?  Those are the
relevant questions.

DAW> 2) The ban only applies to information released by the news media and
DAW> people who were actually in the courtroom. I am neither. I can tell
DAW> all the lies and vicious rumours that I want without infringing the
DAW> conditions of the ban.

Do you then have more freedom of expression that the Toronto Star?  At what
point do you become subject to the same constrains? when you commit the
rumours to writing?   when you make a photocopy?  10 photocopies?  a thousand?

DAW>  3) My alleged source is not traceable to the courtroom at all, hence
DAW> NOONE in this chain of rumour violated the ban.

If the rumour originated from someone in the courtroom, it could theoretically
be traced back to that person no matter how many intermediaries there may have
been.  Do you have the right to spread rumours which you believe to be true,
even if you know they cannot be proved to be true?  What is the point in
spreading a rumour unless you think it might be true?

Despite the sneer in your message, things are not so cut and dry as you would
have us believe.

Stuart

PS Your message was posted to Politics which is a "public" conference.  So I
wouldn't be so quick to assume that the Star is guilty of stealing your work.


          Wednesday, 4 August 1993 1:04:44 AM
          Tech Law Item
   From:          John Stevenson
   Subject:       Re: Electronic Publication Ban
   To:            Tech Law
                  Politics
   Cc:            David A. Westbrook
Well, as far as the Star goes, just because you post something on a BBS
doesn't mean you've given up your copyright. They can't publish the thing
without your permission, but they can quote from it for the purposes of
discussing it. I didn't see what they ran, but they may or may not have
violated copyright - I expect not, knowing the Star's lawyers.

Did you violate the publication ban? Not seeing the original article, I don't
know. I guess I would have to say "probably". As I said before, the legal
definition of publication is very broad - posting on a BBS is publication - no
question about it. Again, though, it's impossible to know whether there was a
violation of the ban without knowing what was said, and whether it had
anything to do with what happened in the courtroom, info presented and so on.
I say probably because if you are talking about rumours of what happened in
the courtroom, that's close enough in this case.

JS

          Wednesday, 4 August 1993 9:32:01 AM
          Political Forum Item
   From:          Peter M. Mosley
   Subject:       Re(2): Electronic Publication Ban
   To:            Politics
The only thought I have about this is the comment that we are a publication.
I'm not sure about that. Although the newspapers and media, in general, make
access to their particular media to the public for their input (PSA's, letters
to the editor and so forth) it is controlled by a single source i.e. the
owners, the publishers, the editors who have the responsibility of what is
said which letters to print who says what.

A BBS is a new animal and although there is an owner (Mark) he doesn't perform
the same duties as a publisher, editor, station manager etc.

I don't think there is much of a difference between a BBS and a gathering of
people discussing whatever in a public place. Plus a BBS has little or no
"reporting" We don't have designated people covering stories and certainly
don't distribute the BBS to the public, or subscribers for that matter. It
takes interactivity and membership.

It could be classified as an electronic magazine but I think that is
stretching the point a wee bit. The postings are reactive to a degree and are
nothing more than  peoples thoughts, opinions, jokes, quips and information.

MOSE


          Wednesday, 4 August 1993 10:57:31 AM
          Message
   From:          David A. Westbrook
   Subject:       Re(2): Electronic Publication Ban
   To:            John Stevenson
   Cc:            Tech Law
                  Politics
JS> Well, as far as the Star goes, just because you post something on a
JS> BBS doesn't mean you've given up your copyright. They can't publish
JS> the thing without your permission, but they can quote from it for the
JS> purposes of discussing it. I didn't see what they ran, but they may
JS> or may not have violated copyright - I expect not, knowing the Star's
JS> lawyers.

It was a graphic reproduction of a TeachText printout of (part of) the
original post. It's hard to say whether they have legal grounds to print it,
whether their opinion of alternate media such as BBSs is so low that they
think they can take what they want, or whether they just assume that the
author of such a piece would be too wary of possible criminal charges to sue.

JS> Did you violate the publication ban? Not seeing the original article,
JS> I don't know. I guess I would have to say "probably". As I said
JS> before, the legal definition of publication is very broad - posting
JS> on a BBS is publication - no question about it. Again, though, it's
JS> impossible to know whether there was a violation of the ban without
JS> knowing what was said, and whether it had anything to do with what
JS> happened in the courtroom, info presented and so on. I say probably
JS> because if you are talking about rumours of what happened in the
JS> courtroom, that's close enough in this case.

The rumour is not about what happened in the courtroom, though that
information was almost certainly discussed there. This rumour originated prior
to the trial and does not come from anyone who was actually in the courtroom
at all. The publication ban extends to courtroom proceedings, not to details
made available (rightly or wrongly) before that. The original source in my
chain of information has almost certainly violated something but any legal
penalties for their actions could not extend to me in any case.


          Wednesday, 4 August 1993 10:58:20 AM
          Tech Law Item
   From:          David A. Westbrook
   Subject:       Re: Electronic Publication Ban
   To:            Stuart Brannan
   Cc:            Tech Law
                  Politics
Gosh, Stuart, you must be in a bad mood! That was one of the most snarky and
bitter posts I've read. I'm giving in to delusions of grandeur and paranoia?
Hmmm...I'll just have to study my manual on satire until I get it right. But
then I imagine that something else is biting your butt. Why don't you just
come out with it and get it over with?

As for the factual and legal differences between my expression and that of
TorStarInc I suppose you could figure that out for yourself if you put a
little effort into your thinking. The BBS question is a good one, however, but
that was quickly lost in your outburst of cynical hostility. John K. Wroe says
(in the Adults conf. - reprinted without permission):

JKR>The question is: Are we media? Are we therefore subject to the ban?

JKR>Here's what I think MAGIC is. It's like a bunch of folks sitting around a
bar
JKR>talking about stuff. Except there are thousands of people who can
overhear.
JKR>When I post something, nobody has proof it's true. You can only trust me,
and
JKR>those of you who know me (like just about nobody out there) know whether
to
JKR>trust me or not. Nonetheless, potentially thousands of people can overhear
my
JKR>comments.

Technically, of course, this is still a "medium" (in the broad sense of "means
by which something is communicated" - OED). Private communications, however,
are qualitatively different than mass media, just as individuals are
qualitatively different than corporations. The question of how many people are
reached has no bearing on this issue (I think). Even explicit personal
editorials in the mass media carry a qualitatively different weight than my
personal comments. As to exactly where we draw the line, I don't have an
answer.




          Wednesday, 4 August 1993 7:09:22 PM
          Tech Law Item
   From:          MAGIC Merlin
   Subject:       Re: Me and My Big Mouth??
   To:            Adults
   Cc:            David A. Westbrook
                  Imoinda L. Romain
                  Stuart Brannan
                  Politics
                  Mary Williams
                  St. Chuck
                  Andre Park
                  Kevin Omura
                  Tech Law
David,

I don't have time to run through the string of messages that your message has
generated.  However, I will state that I did not delete any messages in the
string.  It is possible that the moderator of the conference deleted it
though.

I've had many phone calls (voice) regarding this topic.  I've been asked to
appear on 2 TV Shows, and 1 radio show to discuss this.  On the other side of
the fence they wanted me to debate our rights to discuss these issues with 2
Lawyers.

I can think of better ways to spend my day.

As far as I am concerned, you haven't done anything wrong.

Mark





          Thursday, 5 August 1993 9:42:40 AM
          Tech Law Item
   From:          David A. Westbrook
   Subject:       Re(2): Me and My Big Mouth??
   To:            MAGIC Merlin
   Cc:            Adults
                  Imoinda L. Romain
                  Stuart Brannan
                  Politics
                  Mary Williams
                  St. Chuck
                  Andre Park
                  Kevin Omura
                  Tech Law
MM> As far as I am concerned, you haven't done anything wrong.

Thanks, neither do I, though I would still feel utter resposibility for any
problems faced by you or MAGIC (even though I would insist on blaming
TorStarInc.). My "rightness" and "wrongness" would have nothing to do with
that.

Having found and read the article in question there was definitely a whining
subtext. "We (heap big important) newspapers can't tell what we know but these
(little insignificant) people can talk about it all they want! Waahh! I'm
telling!!")

Gosh! These bulletin boards are PUBLICLY accessible! (to anyone with a
computer, modem, and phone) Why people have to PAY to use OUR newspaper!

Incidently, the article very clearly implies that the rumours are true: 1) by
loudly not relating any details of the posts; and 2) by insinuating that we
are discussing information from the courtroom. That looks like corroboration
to me.

But what is most importantly at stake here, I think, is the status of BBSs in
general. I advise you to stay away from broadcast debates, especially with
lawyers. The less publicity MAGIC gets on this issue the likelier it is that
this will blow over, rather than blow up in our faces. To force the issue of
the legal rights of speech, publication, etc. for BBSs - AT THIS TIME - would
be tantamount to asking the government to restrict us. Let the bureaucracy
ignore us for as long as possible - the longer they take to meddle in our
affairs the longer we can continue without interference.


          Thursday, 5 August 1993 11:31:09 AM,
          Political Forum Item
   From:          Peter C. Kopec
   Subject:       Moderator not Censor
   To:            Politics
   Cc:            MAGIC Merlin
Mary!
I disagree with Peter Mosley's view of July 20, "Fwd Genuine Disgust,"
regarding your standing down from moderator duties because he's not in
agreement regarding the Ad Busting Manual. Shocking how he believes your
opinions aren't worth a penny but his are worth 2¢. (Feh)

Regarding Gary Sittons views of July 20, "Genuine Disgust," I'm not sure if
you're showing favouritism, I haven't been following for that long but I
certainly believe one can have their own opinion AND participate in the
general ongoing discussions AND moderate at the same time. Why he believes a
moderator should not be able to express their own  opinion on a subject (just
shut up and moderate huh?) I don't understand. Maybe I need some
clarification. Why the comparison to other boards anyways?

However, regarding the electronic publication of fact or fiction regarding the
Homolka/(Bernardo) Teale case and your intention to censor "in the name of
good taste" I find truly frightening. I am very much opposed to your idea to
ban, delete or censor for WHATEVER reason.

Unless MAGIC is run by some large corporation and therefore liable under news
media restrictions, something we might not be aware of, I find there already
is a suffocation of news. News gathering is more for profit and not to inform
so much the general public. "For a number of reasons, hundreds of news stories
are underreported in the mainstream news media that would have had the most
significant impact on the public," to quote an article in eye magazine of July
22, Media section about Project Censored Canada. Witness what news was
revealed during Desert Storm.

Stalin didn't announce he was committing genocide of his citizens. The news
media in those days also had publication bans. For good reason it turns out.
Who knew for a fact what became of their neighbours. They were taken away and
sent to work camps and death.

This IS an extreme example of a publication ban, although a ban nevertheless,
I am concerned about its good intentions."For the benefit and good of all our
readers" does not wash with me. I find it worrisome when someone dares to be
concerned about how I might react to bad news. What about the 6 million
exterminated in WWII (World War II)? Would you not tell me about that either?
Would you be concerned how I might react if you told me? Do state sanctioned
genocide (more recently the former Yugoslavia) and the actions of a citizen
fall into different categories of coverage?

A publication ban under the umbrella of (Bernardo) Teale not being able to
receive a fair trial possibly leading to his acquital rather points to the
shortcomings of law and order.

Mary, may I recommend a good sun block, SPF 45 and a wide brimmed hat while in
the sun, and reconsider your reason to censor.

a Peters maxim: History will repeat itself, especially if re-written.


          Thursday, 5 August 1993 1:36:28 PM
          Tech Law Item
   From:          St. Chuck
   Subject:       Re(3): Me and My Big Mouth??
   To:            David A. Westbrook
   Cc:            MAGIC Merlin
                  Adults
                  Imoinda L. Romain
                  Stuart Brannan
                  Politics
                  Mary Williams
                  Andre Park
                  Kevin Omura
                  Tech Law
Couldn't agree with you more on this one Dave, that's why I've been rather
silent on the whole thing, thus quoth St. Chuck

"Those who play Christ tend to get nailed"

I'd rather see the whole thing get forgotten 'till enough people have modems
and are electronically active so that the issue would have much more voter
clout before I'd take on city hall. As of now, the television medium and
therefore most of the public look on BBS's as little more than yet another
evil way to distribute kiddie porn.



          Thursday, 5 August 1993 3:46:44 PM
          Political Forum Item
   From:          Mary Williams
   Subject:       Re: Moderator not Censor
   To:            Politics
   Cc:            Peter C. Kopec
     Now that my brains are more or less back to their normal state, having
recovered not_as you suggest_from an overexposure to the sun as much as an
overindulgence in those drugs the state has deemed "legal," I am in a better
position to indulge my opinions regarding the Homolka Trial Publication Ban.
     As much as I understand it, I am in complete favour of it, and believe
that it should be extended to all media of communication, including the rumour
mill. Quite simply, we should have the good sense to understand why it is in
place and the common decency not to talk about it among ourselves, whether we
share our rumours with our intimate friends or six thousand strangers.
     We will learn soon enough why Karla got off lightly and the details
behind the charges that Paul still has standing against him. Until that point,
the poor man_no matter what anyone might think of him_is innocent; and_no
matter how heinous the crimes he's been charged with_deserves a fair and
impartial hearing.
     If we indulge in rumour and speculation, we chip away at his rights . . .
and ultimately our own. If the public indeed has a "right to know" it is
really only after sentence has been passed, so that we can judge whether
justice has indeed been done. Until that point I see it as nothing more than
idle curiosity and blatant voyeurism at the expense of people's privacy (the
victim's, their families, and the accused) and the accused's right to due
process.
     Only if the details were forever banned, would I complain.
     For the justice system to function properly and fairly, a person should
be able to stand trial for a crime without having his or her reputation
irrevocably sullied. Too often we and the news media assume that when a person
is charged with a crime, he or she must be guilty of that crime. This assumed
guilt receives so much publicity that we've usually made up our minds (or
simply lost interest) before the actual verdict is handed down. No one is
immune to this treatment. If one person is treated this way, we all stand at
risk of being tried in the press.
     I vote for a publication ban on all trials until after a verdict has been
reached.

     Σary




          Thursday, 5 August 1993 5:16:13 PM
          Political Forum Item
   From:          Matt Harrop
   Subject:       Re(3): Electronic Publication Ban
   To:            David A. Westbrook
   Cc:            Politics
I think that the freedom of speech laws governing personal communications are
quite sufficient and, I believe, a fair bit broader than freedom of the press
laws. Insofar as we are not spreading hate in a public forum we should not be
subject to any additional constraints than those governing ordinary
conversation.

I'm not sure if I agree or not.  I like freedom of speach laws.  However I
don't think public computer systems (paying or not) are exactly comparable to
a forum for speach.  The messages we leave are more persistant then speach,
and they give each one of us our own chance to speak our minds to many more
people then if we were simply talking to a friend.
You are correct that a BBS is not directly comparable to a press either.  I
think we need new laws (perhaps even consitutional amendments) to specificaly
stake out and protect freedom of the electronic press.

matt



          Thursday, 5 August 1993 5:30:31 PM
          Tech Law Item
   From:          Kevin Omura
   Subject:       Re(3): Me and My Big Mouth??
   To:            David A. Westbrook
   Cc:            MAGIC Merlin
                  Adults
                  Imoinda L. Romain
                  Stuart Brannan
                  Politics
                  Mary Williams
                  St. Chuck
                  Andre Park
                  Tech Law
Thanks, neither do I, though I would still feel utter resposibility for any
problems faced by you or MAGIC (even though I would insist on blaming
TorStarInc.). My "rightness" and "wrongness" would have nothing to do with
that.


    Dave consider this....if TorStar didn't publish this do you REALLY think
that FRANK or The Sun would sit on it....time for a dose of reality...

Kevin



          Thursday, 5 August 1993 7:28:54 PM
          Political Forum Item
   From:          John P. Sazoom
   Subject:       Re: more dirt on karla?
   To:            Politics
I gather Karla is not his wife....(or she wouldn't be able to testify against
him)

What relation does she have to Paul?
John



          Thursday, 5 August 1993 7:58:51 PM
          Political Forum Item
   From:          Mark Bullen
   Subject:       Re(2): more dirt on karla?
   To:            Politics
I gather Karla is not his wife....(or she wouldn't be able to testify against
him)

What relation does she have to Paul?
John

Ex-wife.

ster_



          Thursday, 5 August 1993 8:38:47 PM
          Political Forum Item
   From:          Adrian M. Heilbut
   Subject:       Re(2): more dirt on karla?
   To:            Politics
AFAIN (as far as I know...)

She is his ex, but why can't she testify?

S.4 of the Canada Evidence Act says that a spouse doesn't *have* to testify.

They can if they want.

Adrian



          Thursday, 5 August 1993 10:13:25 PM
          Political Forum Item
   From:          Kevin Omura
   Subject:       Re(2): more dirt on karla?
   To:            Politics
I gather Karla is not his wife....(or she wouldn't be able to testify against
him)

What relation does she have to Paul?
John


    She is John.....yeah I know you don't trust what you read in the papers!
<g>

Kevin

          Thursday, 5 August 1993 10:38:49 PM
          Tech Law Item
   From:          Stuart Brannan
   Subject:       Electronic Publication Ban
   To:            David A. Westbrook
                  Tech Law
                  Politics
                  MAGIC Merlin
DAW>  Let the bureaucracy
DAW> ignore us for as long as possible - the longer they take to meddle in
DAW> our affairs the longer we can continue without interference.

This is by far the best advice I've seen on the issue to date.

Stuart

          Thursday, 5 August 1993 10:39:37 PM
          Tech Law Item
   From:          Stuart Brannan
   Subject:       Electronic Publication Ban
   To:            Politics
                  Tech Law
   Cc:            Matt Harrop
MH> You are correct that a BBS is not directly comparable to a press
MH> either. I think we need new laws (perhaps even consitutional
MH> amendments) to specificaly stake out and protect freedom of the
MH> electronic press.

No-No-No!  The last thing we need are more laws telling us what is, and what
is not, an acceptable form of expression.  Let's get rid of the laws we have,
let's wake up and realize that the right to free expresssion is inextricably
linked to free thought.  Any limitation on free expression is an unjustified
imposition on personal liberty.

Stuart



          Thursday, 5 August 1993 10:40:36 PM
          Political Forum Item
   From:          Stuart Brannan
   Subject:       Electronic Publication Ban
   To:            Politics
   Cc:            Mary Williams
                  Peter C. Kopec
MW>      If we indulge in rumour and speculation, we chip away at his
MW> rights . . . and ultimately our own. If the public indeed has a
MW> "right to know" it is really only after sentence has been passed, so
MW> that we can judge whether justice has indeed been done. Until that
MW> point I see it as nothing more than idle curiosity and blatant
MW> voyeurism at the expense of people's privacy (the victim's, their
MW> families, and the accused) and the accused's right to due process.

MW>      Only if the details were forever banned, would I complain.

The very act of accusing an individual with a crime has an unavoidable effect
on the perceived guilt/innocence of the individual.  This would be true, even
if the legal process worked in total secrecy.

The accused will suffer under two different scenarios.

First,  if a) she is unjustly accused, and b) following her acquittal, others
treat her as if she had been convicted and c) this restricts or limits her
enjoyment of life. The individuals who are most likely to restrict or limit
the accused's enjoyment of life are friends relatives and co-workers, and
these individuals would be aware of her status even if a publication ban is in
effect.  The rest of us will forget her name in 3 months following her
acquital.  Consequently the publication ban does little if anything to protect
the accused.  (Test:  Name either of the LAPD officers acquitted of beating
Rodney King earlier this year)

Under this scenario, the accused should have the right to recover damages for
any suffering caused by the state's improper prosecution.

The second scenario which would cause unacceptable suffering for the accused
is if she were to be wrongly convicted.  Some say that this might happen if
the public and the press are allowed to speculate on her guilt or innocence on
the basis of information which may or may not be true, and may or may not be
admissable in court.  However, it defies reason to think that even in the
juiciest cases we wouldn't be able to find 12 people who are sufficiently able
to separate the speculation from the evidence given in court, in order to
arrive at a reasonable judgement.  I think that we might even find 12 such
people amongst ourselves.

In summary, the ban is inneffective against the suffering caused in the first
scenario, and the second scenario can't really be shown to harm the accused.
Therefore ban the ban.

Stuart

BTW, you are right about one thing,  99.9% of the discussion about this case
is driven by idle speculation and blatant voyeurism.  However, we should be
allowed to indulge in both these activities if we choose to, so long as the
accused has a right to recover damages from us if our actions harm her.



          Friday, 6 August 1993 12:39:30 AM
          Tech Law Item
   From:          St. Chuck
   Subject:       Re(4): Me and My Big Mouth??
   To:            Kevin Omura
   Cc:            David A. Westbrook
                  MAGIC Merlin
                  Adults
                  Imoinda L. Romain
                  Stuart Brannan
                  Politics
                  Mary Williams
                  Andre Park
                  Tech Law
Latest frank is particuliarly interesting on the topic. The mag claims that
the cops botched the case left right and centre and that the investigation was
almost thrown out of court if it wasn't for Karla's plea bargaining by
promising to give incriminating evidence. So for helping to kill a pile of
people she gets 12 years.

Get a hold of the latest frank, with audrey on the cover.



          Friday, 6 August 1993 12:48:22 AM
          Tech Law Item
   From:          Peter C. Kopec
   Subject:       Re(3): Me and My Big Mouth??
   To:            Adults
   Cc:            David A. Westbrook
                  Mary Williams
                  Politics
                  Kevin Omura
                  Tech Law
                  Stuart Brannan
                  Imoinda L. Romain
                  St. Chuck
                  Andre Park
David,
Your statement regarding BBS' and government intervention reminds me of the
shot used in an advertisement for Global Village Communications. There's an
uncensored version in MACWEEK, of a person, kneeling butt naked with their
head in the ground.

If you choose to ignore something, just because you don't see it, it could
still slap you in that proverbial heinie in the air. It is NOT going to blow
over, wouldn't you agree?

Instead, one must face it square in the face and deal with it by outlining
what you want and where you want it to go and pursue the matter. This is
before someone comes along and tells you what you are going to do. That does
mean lobbying for what you want. Everyone with an interest at stake in
anything say such as BBS' starts off by organizing themselves in one big, big
collective. A representative from that collective writes to those in power
your collectives' mandate regarding BBS'.

You make your voice heard, loud and clear, or soon you won't have a voice to
voice your opinions. We shall continue without interference, because we deem
it so.

Mark has been asked to appear on 2 television shows and 1 radio show.
Discussing it with Mark and a few lawyers would help ratings. Coincidence? Now
why should he be singled out by these media? Because they have information
from that Star journalist who wrote the article on Saturday from which BBS he
got that post. I'm not positive but I don't think any journalist has to
disclose where they got their information. We already agree that TorStar
printed the post without permission of the owner of the post and the BBS to
which it was posted.

You never know when someone will take it to task to charge a BBS on this non_
issue. I stand 100% behind saying and posting what I might have or might have
not overheard. Did you read in the Examiner about the shark that ate a 40 foot
cabin cruiser? It's true, they also showed a photograph. Right there in the
line up at the grocery store last week I read that. They don't print lies now
do they? I thought that's misleading..........

Peters maxim : Beware the bureaucracy which is looking to justify its
existence.



          Friday, 6 August 1993 1:27:36 AM
          Political Forum Item
   From:          Mary Williams
   Subject:       Re: Electronic Publication Ban
   To:            Stuart Brannan
   Cc:            Politics
Stuart: "However, we should be allowed to indulge in [speculation and blatant
voyeurism] if we choose to . . ."

     Why? What business is it of ours? What positive effects could our
indulgences possibly have compared to the inevitable harm?
     This trial is going to be used as a perverse form of entertainment for us
all and blatantly exploited to sell papers and commercial air time. Maybe
André is right, after all!

     Σary


          Friday, 6 August 1993 1:39:38 AM
          Political Forum Item
   From:          Mary Williams
   Subject:       Re: Electronic Publication Ban
   To:            Politics
   Cc:            Stuart Brannan
Stuart: " Any limitation on free expression is an unjustified imposition on
personal liberty."

     EXCEPT when I choose to express myself by spray painting the side of You-
Know-Who's house, throwing a rock through his window, and then burning the
entire neighbourhood down to the ground in the name of Free Speech!
     Stuart, you simply haven't been paying attention!

     Σary


          Friday, 6 August 1993 1:54:39 AM
          Tech Law Item
   From:          St. Chuck
   Subject:       Re(4): Me and My Big Mouth??
   To:            Peter C. Kopec
   Cc:            Adults
                  David A. Westbrook
                  Mary Williams
                  Politics
                  Kevin Omura
                  Tech Law
                  Stuart Brannan
                  Imoinda L. Romain
                  Andre Park
So far as I know (please correct me if I'm wrong) the beurocracy hasn't taken
a bite at this one yet, they seem to be quite happy to forget about it. That's
probably because of the shit they'd get in if they tried to cause trouble here
and they're smart enought to know that.  They're also smart enought to know
when to pick a fight, I suppose they'll wait till they can find kiddie porn on
a BBS and then use that to justify thier existance.

You can't play Jesus if the Romans don't want to join in.




          Friday, 6 August 1993 12:27:35 PM
          Tech Law Item
   From:          Matt Harrop
   Subject:       Re: Electronic Publication Ban
   To:            Stuart Brannan
   Cc:            Politics
                  Tech Law
Let's get rid of the laws we have, let's wake up and realize that the right to
free expresssion is inextricably linked to free thought.  Any limitation on
free expression is an unjustified imposition on personal liberty.

Get rid of the laws we have?  Most of our currect laws on this issue are there
to protect freedom of the press-speach etc...  Out constitution prevents law
makers from making any law that go's against freedom of speach/press etc...
My point is that we neet to put it in writing that electronic mediums are to
be protects by freedom of expression.
This is a grey area currently.





          Saturday, 7 August 1993 12:38:06 PM
          Tech Law Item
   From:          Dino Karbaliotis
   Subject:       Re(2): Electronic Publication Ban
   To:            Matt Harrop
   Cc:            Stuart Brannan
                  Politics
                  Tech Law
This is a truly fascinating line of discussion. I have been doing research in
this area, in the vain hope of persuading a legal publisher to let me write
about "cyberlaw".

My feeling is that a BBS is like a bulletin board: people who put notes up on
a board are expressing their own opinion, and take responsibility for the
expression, not the institution providing the board. It is like "letters to
the editor." Perhaps MAGIC (and all bulletin boards) should provide a
disclaimer on entering discussion areas to make clear that the opinions are
those of the authors, and takes no responsibilty. In law, an ounce of
prevention is worth a whole lot of cure. Further, it should be clear on
entering the board that the author of each post retains copyright. The key to
remember is that intellectual property laws only protect the expression  of an
idea, not the idea itself. Copyright is subject to certain limitations: for
instance, as long as you limit the quote, you can use portions of someone's
writing in an academic text. "Newsworthiness" is another exception: quoting
some of the controversial sections of Rushdie's books might be an exception as
well, as long as it was not too lengthy.

Whether the publication ban extends to this area is another question unrelated
to copyright. The publication ban (as far as I know) extends to anyone having
had access to the court to hear the crucial evidence. It also extends to the
news organizations themselves; so if a reporter repeated the evidence to
his/her editor, or to the copy clerk, and those individuals repeated the
information in violation of the ban, then I would say that the individual is
guilty of contempt. If what was posted here was speculation and rumour, and
not first-hand or second-hand knowledge from someone having had access to the
court, then it would likely not be covered by the ban. The danger for all
BBS's in this area of the law, or related areas such as individuals posting
pornographic materials, or posting software in violation of copyright or
containing viruses,  is the lack of knowledge of law enforcement officials in
this area--they might well go after the BBS as the "publisher." While the BBS
would (in my opinion) be vindicated, particularly if it has covered itself by
making the disclaimers mentioned above (you listening Mark?), it would by
something of a Pyrrhic victory, since the BBS equipment and lines are normally
seized in these enforcement efforts.

Mark was invited to have these interviews because of the hysteria around the
Bernardo/Homolka case, not out of any interest or appreciation for electronic
bulletin boards, and the opportunistic desire to cash in on the story from the
public's interest.  The media senses that this is a new area (cyberlaw), but
still considers it the province of computer nerds and hackers.



          Tuesday, 10 August 1993 8:14:03 AM
          Tech Law Item
   From:          David A. Westbrook
   Subject:       21st Century Communications Media
   To:            Politics
   Cc:            Adults
                  Tech Law
                  The Electronic Frontier
                  Discrimination
Here's an interesting bit of information that makes the BBS/Publication issue
somewhat more complex. Ernst Zundel, of Holocaust denial fame (fame?), has
acquired cheap satellite time and is broadcasting his message on satellite
T.V. Now I don't know all the ins and outs of satellite broadcasting but this
case appears to be one of a private individual using relatively new technology
to send a message outside of the established news media channels - rather
analogous, in my mind, to using a BBS to communicate a rumour. This isn't
exactly Vision TV now, is it.

Aside from any already existing legal differences, how does this compare to
our dilemma? I mean, what are the FUNDAMENTAL differences or similarities
between these two media?

I can conceive of a situation, with some small technological advance, where
satellite tv functioned in exactly the same way our BBS does now. If I then
broadcast the Homolka rumour, would that constitute a violation of the
publication ban? Why or why not?

If Ernst Zundel posted his message on MAGIC would that qualify as spreading
hate literature? I am wondering about the nature of the media, rather than the
content of the message as such.

This is all new to me and I'm having trouble finding a place in my thinking
for this case. I can see a whole new host of problems looming on the horizon
here. I'm extremely interested everyone's opinion on this.

Thanks,
David



          Saturday, 14 August 1993 8:20:09 PM
          Tech Law Item
   From:          Kevin Omura
   Subject:       Re(2): Intellectual Property Rights
   To:            Political Forum
   Cc:            Tech Law
    Just a queston for you folks out there in cyber space. Just how does one
PROVE the authenticity of the posting? ie on Magic we can assume that the
person does indeed exist because of the method in which Mark validates
accounts, BUT what of folks coming to you via Internet or gateways? Sure a
message has a _ attached to it but how do we prove virtual ownership??? BTW
who is Grizzelda the Ferrit????? Hmmmm......


    Just thought I'd toss that one over, oh another scary thought, what if
through some fluke of electronics the Magic PO gets scrambled and messages
posted by one person get mixed with those of someone else??? A sort of
electonic word stew? Dang this isn't political again! (ok qualified it by
sending this cc to Tech Law) covering my cyber butt.....

    Anyhow just a few thoughts......

    Kevin @BulkRate, it's more than a program, it's an adventure!_





          Sunday, 15 August 1993 2:55:23 PM
          Tech Law Item
   From:          Cory Doctorow
   Subject:       Re(3): Intellectual Property Rights
   To:            Tech Law
Kevin, if something can be decrypted using someone's public PGP key, then you
know that it was encrypted with their private key.  Which is like saying, if
something bears someone's ink signature, then you know that either they signed
it , or that someone forged it.  That's about as certain as you can get, I
guess.


          Sunday, 15 August 1993 4:03:35 PM
          Tech Law Item
   From:          Jim Carruthers
   Subject:       Re(3): Intellectual Property Rights
   To:            Tech Law
Kevin Omura writes:
Just how does one PROVE the authenticity of the posting? ie on Magic we can
assume that the person does indeed exist because of the method in which Mark
validates accounts, BUT what of folks coming to you via Internet or gateways?

Well, you can use PGP and attach a signature to the end of your message. Since
people can check that the signature is always the same, or can check with an
Internet escrow account to verify the sig, then there is little chance of
forgery. For a one-time posting, you are SOL, but of course there are
anonymous remailers for those types. So if you want to verfiy someone's sig,
you make sure they post it with their message, then have them re-post it on
another channel, ie via e-mail, and compare the two to make sure they are the
same.
The details are outlined in the docs for PGP.
cheers
Jim


          Sunday, 15 August 1993 4:18:16 PM
          Tech Law Item
   From:          Geoff Herzog
   Subject:       Re(3): Intellectual Property Rights
   To:            Political Forum
                  Kevin Omura
   Cc:            Tech Law
KO "what if through some fluke of electronics the Magic PO gets scrambled and
messages posted by one person get mixed with those of someone else???

Absolutly nothing really.   Since anything written on this system cannot be
used as any sort of evidence or cannot possible affect anything outside this
system, the only thing you would have are the same arguments being argued by
the same people under different names.

The argument itself is important, as well as the ideas behind it, not
nessicarily who wrote it.

Even under the security Mark provides, in this "cyberspace" it is relativly
easy to cheat the system if you really want to.    So even now you don't know
who is really who.


          Sunday, 15 August 1993 7:17:20 PM
          Tech Law Item
   From:          Peter Pawlyschyn
   Subject:       Re(3): Intellectual Property Rights
   To:            Tech Law
   Cc:            Political Forum
                  Kevin Omura
Kevin ...

∙> Just how does one PROVE the authenticity of the posting?

There are _varying_ degrees of credibility, but as Geoff suggests, in the end
there is _no_ absolute proof. The proof is relative to the degree of
verification that _you_ are willing to accept.

For some it is ridiculously low, for others paranoidingly high. Currently, our
legal system requires a parallel-analog form of validation for digital
documents. This is why signatures on faxed documents are _not_  eligable as
legal proof.

∙∙Peter∙∙




          Sunday, 15 August 1993 9:51:19 PM
          Tech Law Item
   From:          Stuart Brannan
   Subject:       Intellectual Property Rights
   To:            Political Forum
   Cc:            Kevin Omura
                  Tech Law
KO> Just a queston for you folks out there in cyber space. Just how does
KO> one PROVE the authenticity of the posting?

Why would we want to do that?  Surely the presence of a copyright notice
simply indicates that the author of the message has retained some rights to
it, despite making the content publicly available.  Why should the reader care
or have to prove that the author is who they say they are?  The reader is
limited in the uses to which they can put the message regardless of who wrote
it?

The proof of authorship could become a problem if the author wished to enforce
their rights, and the authenticity of the message was challenged by the
reader.  However, this is the author's problem, not the reader's, and in most
cases I would think that it would be pretty easy.  If a message was
copyrighted to "Kevin Omura", and someone called "Kevin Omura" tried to
enforce the copyright, that would be rather good evidence of ownership, I
think.  Things would be trickier if you used a pseudonym and there was in fact
no such person as Kevin Omura, or if someone else gained access to your
account and claimed ownership of some of the messages posted through the
account.  However, even in these cases I don't see any issues which are
different from those which could arise in other media.

Stuart

          Sunday, 15 August 1993 10:02:40 PM
          Tech Law Item
   From:          Kevin Omura
   Subject:       Re: Intellectual Property Rights
   To:            Stuart Brannan
   Cc:            Political Forum
                  Tech Law
KO> Just a queston for you folks out there in cyber space. Just how does
KO> one PROVE the authenticity of the posting?

SB> Why would we want to do that?  Surely the presence of a copyright notice
simply indicates that the author of the message has retained some rights to
it, despite making the content publicly available.

    Well you hit it in the next line, when you say "The proof of authorship
could become a problem if the author wished to enforce their rights" and that
to me would be the problem, just how could you go about proving you are truly
the cyber author? Perhaps a custom seal like in the old days <g> or an
encrypted note??

SB>    or if someone else gained access to your account and claimed ownership
of some of the messages posted through the account.

    Well that is the other reason, these days at least around our office the
majority of folks leave their machines on and logged onto the system so who is
to say that you could have your name used to post information/comments/flames,
etc without your knowledge..

    Anyhow I put this issue on the table because it is a new area and one I
wonder about being a sysop of a public BBS myself.

Kevin


          Sunday, 15 August 1993 10:09:55 PM
          Tech Law Item
   From:          Kevin Omura
   Subject:       Re(4): Intellectual Property Rights
   To:            Peter Pawlyschyn
   Cc:            Tech Law
                  Political Forum
Currently, our legal system requires a parallel-analog form of validation for
digital documents. This is why signatures on faxed documents are _not_
eligable as legal proof.

    That was the impression that I was under. So therefore I pose this
arguement, what validity is there in placing a _ on a message I post to a
public forum on a BBS? Does the realm of copyright fall to the owner of the
system that the message is posted to? Therefore how does this then affect
PRIVATE mail? Or would logic prevail and the _ falls to the author of the
message....whoever that may be....


Kevin






          Monday, 16 August 1993 9:32:41 AM
          Tech Law Item
   From:          Peter Pawlyschyn
   Subject:       Re(5): Intellectual Property Rights
   To:            Kevin Omura
   Cc:            Tech Law
                  Political Forum
∙> Does the realm of copyright fall to the owner of the system that the
∙> message is posted to? Therefore how does this then affect PRIVATE mail?
∙> Or would logic prevail and the _ falls to the author of the
∙> message....whoever that may be....

That's a very logical consideration Kevin!

Unfortunately law is infrequently based on logic. It is more likely to be
based on intent, probability and precedent. In the case of a disputed
copyright, the burden of proof would have to fall on the author to demonstrate
the origin of their creation. This could be in the form of rough drafts,
parallel forms of analog publishing, expert witnesses and the lot.

A BBS used to have the strength of a _compilation_ copyright behind it. That
is, all data compiled into some structure or sequence was the property of the
compiler. It was called the "sweat of the brow principle". In the U.S., a
country Canada closely mimics when it comes to intellectual property laws, a
recent Supreme court ruling (summer of 1991) brought this "sweat of the brow
principle" into question. I believe the case was Rural Telephone & Telegraph
vs. x Publications.

Essentially, the Supreme court ruled that in order to protect a compilation,
the owner had to demonstrate it had some unique "artistic flair". It wasn't
enough to protect columns and rows of data, such as the plaintiffs were doing
with telephone directories. There had to be some unique signature to the way
the data was packaged. The signature could be protected, but not the raw data.
They went on further to state that with regards to patent protection, only
inventions were patentable and not discoveries.

You could imagine what dificulties this presented to the U.S. copyright office
which under direction from several republican administrations were rubber
stamping all processes previously brought to it.

In practice, the owner of a BBS is more a "carrier" of messages rather than a
"creator" of messages. It's important that the courts begin to recognize this,
rather than making such services accountable for their postings (the recent
seizure in Hartford, CT. comes to mind).

∙∙Peter∙∙