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The Courts Government News Your Rights Online

Publishing Now Counts As Now 152

Posted by timothy from the imagine-the-alternative dept.
wik writes "The New York Times reports that the statute of limitations for defamation is one year from the date of posting a page on the web. The courts had to decide whether the posting date or the last download date of a web page constitutes the publication date."
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Publishing Now Counts As Now More

Publishing Now Counts As Now

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  • Determining the posting date (Score:5, Interesting)

    by SpatchMonkey ( 300000 ) on Thursday July 04, 2002 @10:58AM (#3822013) Journal
    They're going to have a bit of a problem determining the posting date, as the date header in the http response can quite easily be forged.

    I suppose this is where things like Google cache and the Wayback archive come in useful, (IANAL) but it seems to me that for them to be trusted, further legislation and rulings would be necessary to give them reliable legal status.

    And, like, what if someone hacked them? These things need to be considered!
    • I would tend to agree with this. If you could use an archive of some sort, you'd also have to prove that it was a `neutral' source. Non-affiliated or whatever. The point that you're making and very well so is that this is a big mess and should be dealt with accordingly.

      The posting date should clearly be the date when the clock starts ticking. Even if the web allows many times for dynamic content, created on the fly, it still should be considered published. Setting precedents like these is very dangerous.

      But then again, who is to say that the posting is `published' to a small group first and in the 11th hour (11 months and 2 weeks later) gets published in the real world... There are all kinds of sleazebags out there.
    • What about if I link to a page - I am republishing the article on the date I create the link? For example, if I write an article about someone that gets published in my local paper, and then 3 months later it gets picked up by Time magaize and the offended party reads it there. In that case, the date of publication can be the Time magazine's date of publication, and not the original articles.

      Now in the Web World, if Time online (for example) links to an article put online by my local paper 3 months ago, what is the date of publication. As far as the local paper is concerned it was 3 months in the past, but as far as readers of Time online, it was today. What date would be used as a baseline for my rights under the statue of limitations?

      Just food for thought.

      • If linking to an existing page were to be treated as "publication" (and I believe it is not), the statute of limitations would apply to the new publisher. In your example, your local paper has nine months left, but Time online starts again with a year.
        IANAL.
        • Sorry... Following up my own comment...
          This earlier decision [phillipsnizer.com] said:

          "If the article is altered or edited in a different matter, or if a defamatory article is placed in a new form (such as the first posting of a previous print-only publication on the Internet), a new statute of limitations period will begin to commence on the date of such republication. Said the court:

          A republication will occur when the defamatory article is placed in a new form (paperback as opposed to hardcover) or edited in a different manner."
          • Actually most of the decision, that I read, was based on the evidence that was provided, not relating to the issue on the website.

            Even though the single publication rule applies, it is not clear as to the scope of the change as it applies to the website. It your website if broken into distinct articles. But what about a log on a site that is related to the defamatory article?

    • Re:Determining the posting date (Score:5, Funny)

      by DickBreath ( 207180 ) on Thursday July 04, 2002 @11:49AM (#3822294) Homepage
      They're going to have a bit of a problem determining the posting date, as the date header in the http response can quite easily be forged.

      C'mon, we're all smart enough here to know that this problem is easily solved.

      Your Palladium IIS server will upload a unique document ID and publication date for all documents you publish to a central government server that tracks the publication of all documents. Additionally, each time a document is read, the trusted IIS server will notify the government document tracking server that the document was read and by who.

      Problem solved. Now it is easy to determine any of...
      1. The date the document was put on the web
      2. The date of the first download
      3. The date of the last download
      4. The dates of any revisions to the document
      5. And best of all... who is reading what documents!
      etc.

      As for implementation, the government document tracking server would probably need to be distributed, sort of like the root name servers. We could put ICANN in charge of this.

      This not only solves the problem, but also helps with our oh so important copyright protection. Someone else publishing the same document without permission could be tracked down.

      It's good for everyone. The economy. The Govt would spend $$ on servers. MS would rake in the profits. The RIAA / MPAA would love us. And it would help in defamation suits so that everyone would quit saying negative things about anyone else.

      Now what was Fritz's address again?

  • A reasonable decision. (Score:5, Insightful)

    by uncoveror ( 570620 ) on Thursday July 04, 2002 @11:01AM (#3822026) Homepage
    I applaud the court for this decision. If the date of publication changed everytime somone new viewed a web page, then the statute of limitations would be rendered meaningless. Defamation suits are usually just slapp suits anyway. The fewer of them we have wasting the courts' time, the better.
    • I am glad that they decided this way. When a newspaper is published, do they go by the date of publication or the most recent tome someone bought a copy? Recently things have been more harshly regulated simply because they were electronic; I am glad that that isn't the case here. Maybe we can continue to get some sanity in the courts. Just a thought. :>
    • I applaud the court for this decision.

      But what about our friends, the poor RIAA and MPAA? This decision isn't so good for them. If this had gone the other way, they could have found some way to construe Copyright protection to last from the last download date. Now that they cannot do this, we will probably see the economy of the whole world get worse and worse in an ever decreasing downward spiral. This is bad news.

  • Not necessarily good... (Score:4, Insightful)

    by cperciva ( 102828 ) on Thursday July 04, 2002 @11:02AM (#3822031) Homepage
    Unless I'm missing something, if I want to defame someone in the US now, all I have to do is upload the material to a web site, and wait 12 months before I give anyone a link to it.

    The situation on the web is rather different from with traditional publishing, since it is much easier for web pages to be "published" well in advance of when any significant number of people see them.

    If there is to be a 12 month statute of limitations, I think that the window should begin *when the plaintiff becomes aware of the material*, not when it was actually published.

    • Re:Not necessarily good... (Score:4, Informative)

      by Anonymous Coward on Thursday July 04, 2002 @11:09AM (#3822073)
      Unless I'm missing something, if I want to defame someone in the US now, all I have to do is upload the material to a web site, and wait 12 months before I give anyone a link to it.

      [..]

      If there is to be a 12 month statute of limitations, I think that the window should begin *when the plaintiff becomes aware of the material*, not when it was actually published.

      Usually, publishing means making something public, i.e. giving the public access to it. If you defame someone on cnn.com, but the plaintiff only hears about it ten years later, it would still have been published ten years previously.

      Also, remember that to defame some-one, there has to be at least one third party involved; if you just say 'Mr. T is a fool!' to Mr. T himself and nobody else hears it, that maybe be an insult, but it's not slander.

    • It's the same for physical distribution, no? I can print up several boxes of fliers that defame someone. I can give one or two fliers to friends, but keep the rest of the box locked up until 12 months later.
    • That doesn't make sense, if you want publication laws to be uniform (that is, for copyright not to have special clauses for web publishing, which is a nasty can of worms as we've already seen).

      Picture this: I write a book defaming Joe Blow. It sells very poorly and sits neglected on library shelves for 20 years. One day Mr.Blow happens to see a copy and reads it -- 20 years after the publication date. Now, if the statute window began "when the plaintiff becomes aware of the material" that means Mr.Blow can sue me ANY number of years after the alleged defamation takes place, based on the sheer chance of when he happens across the material.

      Web publishing is no different, except in the difficulty of proving when a given defamation was initially published. After all, even in a dated weblog type page, I could change the material and the date on it any time I liked.

    • Re:Not necessarily good... (Score:4, Insightful)

      by Rogerborg ( 306625 ) on Thursday July 04, 2002 @01:26PM (#3822754) Homepage
      • The situation on the web is rather different from with traditional publishing, since it is much easier for web pages to be "published" well in advance of when any significant number of people see them.

      Oh, please stop with the "web is different" mantra. It's possible for a defamatory printed article to be passed around a few friends, get published in a dorm magazine, move up to a college magazine, get picked up by a local newspaper, then go national. At any of these stages, it could be modified, expanded, redacted or for that matter OCR'd and media shifted to the web or CD-ROM. Heck, fake false dated versions could be produced at any point. It would be up to a court to decide what the first "publication" was, and whether it preceeded the version presented by the plaintiff by a year. Similarly, as a court would have to decide if the hidden version was publically available a year before it was noticed by the plaintiff or was shifted to a more public forum. Courts are actually rather good at deciding these things.

      • Agreed, except that if by "version" you mean "republication", the publication date is that of the version presented by the plaintiff, not of the first publication, since each republication has its own independent year w.r.t. the statute of limitations. The plaintiff is free to sue as many authors of republications as he likes, as long as it is within a year of each of their respective publication dates.
    • To libel, one must:
      • Make a false statement, either recklessly, with malice, or negligenly (in the case of a private figure).
      • Publish it to a 3rd party. If I send you a letter, saying that YOU are are a convicted child molester, it does not count because it is not to a 3rd party.
      • And it must cause harm.
      My summary judgment motion [sorehands.com] details the requirements of libel, under Mass law.

      Anyways, for most torts, the statute of limitations runs when the plaintiff knew, or should have known of the act/harm.

      • In certain cases, it is not necessary to prove harm, it is effectively accepted that harm could occur, and that is enough (even if there was probably no harm caused).

        See this page [look4law.com]. An example is calling someone a criminal when they have not been convicted of anything.
    • If there is to be a 12 month statute of limitations, I think that the window should begin *when the plaintiff becomes aware of the material*, not when it was actually published.

      Then the plaintiff would be able to sue whenever they want because they'll just claim that "they weren't aware of it".

      Unless I'm missing something, if I want to defame someone in the US now, all I have to do is upload the material to a web site, and wait 12 months before I give anyone a link to it.

      The burden of proof of publication is probably on you. "I put it up on my web site on 1/1/02." is probably not good enough. "It showed up on Google on 1/1/02, and here is the evidence." probably is. If you want to prove an earlier publication date, it's up to you to figure out something better.

  • A YRO decision that I actually agree with? But seriously, I think that this one is actually coherent. If you post something defamous, and (assuming it later gets yanked), the law should judge it from the time you commited the *act* of uploading the document from the web, not from the time someone else saw it.
    • (Sorry to reply to my own comment, but there's one more thing I just thought of)

      In several past rulings, the court has used the analogy of the internet being akin to a public bathroom wall. What does the law say if you post something defamous on the wall -- IE, "Mr. So-and-so is a you-know-what..." If you were sued, would the court interview people to find out when the last time someone had seen the scribble? I doubt it

    • interesting sig (Score:1, Offtopic)

      by BlueboyX ( 322884 )
      I can't help but think that there are two exceptions to that rule. Doctors and lawyers are two professions that have basically been 'set up' so that they are quite profitable and legal, and enjoyable to the people interested in that kind of thing. The rich gotta set up their kids with good jobs somehow. :P

      I think that the barriers in place to keep losers out of the medical field are reasonable (dont want an idiot operating on people etc) and there will always be sick people. However, lawyers... I don't think anything bad about their barriers of entry either, but they do things to keep themselves important. Like endless laws that are intentionally designed so that no normal (or even reasonally above average + educated) person can read them. Also the odd suits that we all know too well....

      Well, at least this one went well. But you have to wonder why it was necessary at all. :P
      • Like endless laws that are intentionally designed so that no normal person can read them.

        My first reaction was to agree, but then I tought about, of all things, the rulebooks for RPG's and the various SciFi/Fantasy card games out there. I have found so very many cases where the grammar of the rules was just slightly vague or where the writers glossed over a section to some small degree. Chaos usually ensues as the parties involved battle interpretations. So it's understandable that when one wants to write a law, they want to make the language as precise as possible to avoid loopholes and misuse. Of course, they fail anyway...

        Not unlike software programming, really. Languages that are detailed and complex (and therefore harder to learn) can be annoying when you try to compile, but it forces you to be _extra_ careful when writing and debugging it. Languages that are simple and have a lot of automation involved (Visual Basic comes to mind) can be convenient, but you never really have the degree of control over the software you need.

    • Re:Holy crap! (Score:1)

      by Anonymous Coward
      DEFAMOUS? Isn't that what happens to old film stars?

      Perhaps you meant defamatory ?

  • So the trick is to post your defamatory content on an obscure website, and let it sit there for a year before linking to it from a popular website.

    Interesting. I bet there are 'teams' out there already setting up the obscure websites.

    Does the httpd on my dialup NetBSD box count as a 'website' in this ruling? I'll just park my slander there for a year to let it ripen.
  • By this ruling, you can post up a webpage saying anything about anyone and then just wait a year to get it indexed and spread it around and you're in the clear. Just make sure you have proof you posted it a year earlier.

    Keenan

    • Proving date of posting (Score:2, Interesting)

      by fnj ( 64210 )
      Well, you could make a stab at proving that the date of posting was at or before a given date by displaying the page in a browser and photographing the display with a copy of today's newspaper next to it.

      The trouble is, you could load the page from a local hard drive and then just type in anything for the URL in the Explorer or Netscape address line.

      It's difficult to see how you could ever have ironclad proof.
      • Well, you could make a stab at proving that the date of posting was at or before a given date by displaying the page in a browser and photographing the display with a copy of today's newspaper next to it.

        That doesn't proove anything.

        Suppose I have a habit of saving newspapers? Now I can write something slanderous about Jack Valenti and Hillary Rosen today. Publish it. Dig out a 1 year old newspaper. Photograph it. Have I prooved that the page is 1 year old?

        The photo prooves nothing. The photo was taken when the newspaper was published. But the accompanying web page in the photo could have been published at any prior time or at any later time.

        There is also the issue of how trustworthy photos are these days. But since I've already shown that the photo prooves nothing, I won't get into the subject of photographic fakery.
      • The newspaper trick only works for "after a given date", not before!
        You know, for proving that you haven't killed the hostages yet...
        If you want to prove that something happened before a given date, you need to involve a trusted third party.

  • Books &co.. (Score:2, Insightful)

    by oliverthered ( 187439 )
    Is the publication date of a Book, the day it first went to press or the day the last copy was sold. I'm confused.

    If the publication date of a news paper the day it was published, or the last day that someone wrappes up a china set with it before mnoving house.

    Oh please help me clear my confussed mind.
  • So if I wish to publish something that I'm concerned will get me slap-suited, such as a critique of a leader of a well-financed cult, can I bury it in my website in such a fashion that search engines are unlikely to find it, but a visitor could still stumble across it, wait a year, then post it on the front page?

    What is a good method for making a document technically available, but unlikely to be spidered. Too many engines ignore spider.txt. How about placing it behind a form entry?
  • It's always nice to see common sense prevail.

    Although this does raise issues of how to authoritatively determine date of posting, the alternative would effictively void any statute of limitations.
  • The 'courts' should keep a deceased judge in the closet to make decisions like this.
    No brain required,
    cheap as all get-out.

    --Can you live on beer alone? Join the experiment at httb://www.oooz.zyy/bud.cgi?day=???
    • The 'courts' should keep a deceased judge in the closet to make decisions like this. No brain required, cheap as all get-out.
      Not that hard to do: a lot of judges have plenty of skeletons in their closets anyways...

  • It's complicted (Score:5, Insightful)

    by JanneM ( 7445 ) on Thursday July 04, 2002 @11:12AM (#3822095) Homepage
    The whole issue of 'publication date' is very slippery online. With books or newspapers, it's easy, but on the net, it can be a very difficult issue.

    Assume I've written a rant where I accuse CowboyNeal of secretly harboring immoral thoughts about herring. I put it up on my private web page. That should be the publication date, no? Well, maybe. Nobody could find it as there are no links to it, and I don't tell anybody about it.

    Suddenly Google gets hold of the link. Is that the publication date, now that people can actually find the page? On one hand, the text may have languished on a nowhere website for ten years, and I've totally forgotten about it, so surely I can't be punished for google finding it ten years after it being written? On the other hand, is it considered published (or even defamation) if nobody can find it unless I tell them where to look?

    It all erupts into a huge uproar; CowboyNeal denies everything and maintains he has unhealthy obsessions only for salmon, but never, ever, herring. Of course /. picks it up and adds a newsitem about it - complete with a link to the text. Is that publication? By me or by /.? Can I get into trouble for something /. does? Can /. be sued for defamation by providing that link, even if the statute of limitation has elapsed on the text for me?

    This is just scratching the surface, of course; the problem here (as with so many aspects of the net) is that concepts that are clear and workable offline do not translate well online. /Janne
    • hmm, while i agree that in general the internet is a much more complicated place (legally speaking) than the real world, i would say that the first part of your argument is invalid.

      if i published an article attacking cbn but that article was hidden away on the back page of some small circulation journal on fly-swatting, but was then found ten years later (it *might* happen) the publication date is still the same.

      this could the be photocopied and stuck on billboards, handed out leaflet-style, but the publication date is the same. if a newspaper includes an excerpt, or even talks about it, that would be the same as slashdot linking to your defamation about herrings. slashdot is not endorsing your opinion, they are just making other people aware of this.

      all in all, it's a tricky area, but then so much of the legal hemisphere is.

      kill all the lawyers, make the bytes free!

      or not.
      • It's not the same. If you take something from the internet and stick it up on a billboard, you have republished it, and if a third party sees it and understands it, you are in trouble. Unless it was true, or CBN doesn't find out about it for a year (after you put it up), or... I can't remember all of the defences.
    • But how did Google suddenly get hold of the link?

      I don't think your argument works. It is either published or not.

      If Google could find the link, then so could someone else. Therefore it is published.

      If it is inaccessible so that nobody could find it. Then Google wouldn't have found it either. So it is not published.
      • If Google could find the link, then so could someone else. Therefore it is published.
        What if my robots.txt prevented Google from finding it, but there was a click path to it?
    • I'm not sure you should assume the net is different. Your example is an obscure website that is largely unknown until Google and then slashdot get ahold of it. Replace "website" with pamphlet, "Google" with library, and "slashdot" with New York Times. Was the pamphlet published when the original author self published it, when the library put it on the shelf, or when the New York Times wrote a story about the uproar over a library putting a pamphlet with salacious details of Cowboy Neal's herring obsession on its shelves?

      Why would the court's definition of publication date be any different for the self published pamphlet and your obscure website?

    • Re:It's complicted (Score:5, Funny)

      by quantaman ( 517394 ) on Thursday July 04, 2002 @11:38AM (#3822233)
      I put it up on my private web page...

      ... Of course /. picks it up and adds a newsitem about it - complete with a link to the text. Is that publication? (or even defamation)

      No, if your private web page actually holds up to the /. effect long enough for anyone to see it I think CowboyNeal rather than sueing you will give you an award!

    • How would the law deal with an article that was published in an obscure newspaper that no-one read, but then a year later someone took thousands of copies of the paper and started leaving them lying around in public places for people to read?
    • Someone could publish a book with the same material in it. Suppose it flops and most of the copies are "stripped" and sent back to the publisher. Then, years later, CowboyNeal finds a copy of it. Same situation. You publish it when you publish it. The fact that no one cares to look at it is irrelevant

    • Assume I've written a rant where I accuse CowboyNeal of secretly harboring immoral thoughts about herring. I put it up on my private web page. That should be the publication date, no? Well, maybe. Nobody could find it as there are no links to it, and I don't tell anybody about it

      You could write the same stuff in a book, have it printed and only sell it in 'kaldifjördur' (a isolated 20 km deep fjord in Greenland with 14 habitants ).

      And after a year you start selling it somewhere else. So, whould the "publishing date" be when you start selling it somewhere else ?? You gotta be kidding !

      • The publication date in 'kaldifjördur' is the original date of publication in 'kaldifjördur'. The publication date everywhere else is when you started selling it everywhere else. You're protected by the original date of publication, methinks, only if the victim read the offending stuff from a book originally sold in 'kaldifjördur'.
        • The publication date everywhere else is when you started selling it everywhere else.

          So I sell it mail-order from day 1, from 'kaldifjördur'. Then after a year I start selling it over the counter elsewhere.
          or
          I only sell in mail order, but I don't start advertising it elsewhere until a year after I start selling it in 'kaldifjördur'
          or
          Only sell it mail order, advertise it everywhere, but call the book "Poems about a dried fish", and hope that nobody will buy it for a year. .....
          The possibilities are endless... You realy can't make this claim you just made.

    • There are thousands of books out there that I haven't heard of yet. Does that mean that they haven't been published?
    • Also, it's not that hard to fake publication dates when we're talking about websites. There would be no way to really track when a page was posted; how would the courts deal with this?

    • The problem with this argument is that it's not really unique to the web, but could have been applied (in slightly modified form) to paper publishing, too. Suppose, for instance, that you wrote the same nasty thing about CowboyNeal in your local conspiracy paper, but it's a mimeographed thing with a circulation of just 50 so nobody important reads it. Ten years later somebody from the New York Times happens to find a copy and thinks that your article is the most wonderful thing he's ever seen. He asks the publisher for permission to reprint it, it goes in the next day's Times, and before you know it the quote has become the most popular thing since "All Your Base Are Belong to Us".

      In that case you have the same issue of a comment being published but languishing in some out of the way location during the time it takes the statute of limitations to run out and only later getting into wide circulation. There's nothing about something being publishable and only getting widespread publicity much later that's at all unique to the web.

    • Re:It's complicted (Score:3, Interesting)

      by Rogerborg ( 306625 )
      • The whole issue of 'publication date' is very slippery online. With books or newspapers, it's easy, but on the net, it can be a very difficult issue.

      Apparently not. This was a 7-0 vote, with no dissent. And I can understand why.

      What's the difference between a download and a reprint of a newspaper article? Or it appearing in a journal? Or it being collated in a book? Or the rights being sold to another publisher and them publishing it? Or it being OCR'd and distributed on a CD-ROM? Or, for that matter, of someone retrieving it from an archive and making a photocopy of it for personal use?

      Your point is only half valid. If you start down the slippery slope of asking what actions constitute a new publication, then you're into a world of litigation. But that applies equally to printed works as well. The words aren't graven in stone, and even if they were, they could be transcribed to a new medium, just as an online article can be printed in a publication. There's nothing particularly magic about the web: it's functionally very similar to a very convenient version of a paper archive and a photocopier.

      This court just cut through the bullshit and got it exactly correct: the clock starts ticking from the date of first publication of the content in any medium. Hurrah for sane judged!

    • With books or newspapers, it's easy, but on the net, it can be a very difficult issue.
      It's a very simple issue made complicated by dot com lobbyists/marketeers who want to convince everyone that existing laws (whether they be laws of economics or laws of a society) don't apply to the Internet. (IANAL, but I am "familiar" with U.S. communications law)

      The date that a book is made available to the public is its publishing date. Likewise, the date that content is made available to the public on a Web site (whether it's linked or not -- just because a book is not advertised or read doesn't mean it wasn't published) is its publishing date.

      If I go to the library and read a book that has been sitting on the shelf for 2 years, the publishing date doesn't change. Likewise, if slashdot links to a story that's been sitting on a server for two years, its publishing date does not change.

      If someone sells their copy of a book to a used bookstore, and someone else buys it from the bookstore, the book's publishing date does not change. Likewise, if Google caches a page that's been sitting on a server for a while and distributes the cached version to someone else, the page's publishing date does not change. Google has issued a reprint of the original publication (and may be violating the publisher's copyright), but it is no more responsible for the defamatory content of the reprint than a microfilm publisher would be responsible for defamatory content in an archived copy of a newspaper article.

  • It makes sense. (Score:3, Interesting)

    by Restil ( 31903 ) on Thursday July 04, 2002 @11:16AM (#3822123) Homepage
    Just because something may be available on the web for years to come, doesn't make that any different from typical print publications. I can go to my library and look up 20 yr old newspaper articles. They're still available, so why should accessing webpages be any different? Publication dates means the date that the article was PUBLISHED. It doesn't make ANY difference when someone actually READS it.

    Now, I wonder what effect this would have if an article was changed after the initial publication date. This is a possibility of all digital news, where papers are pretty well stuck with what they print.

    -Restil
    • It gets worse, though. What if I have an ASP+ (or your web language of choice) page that dynamically produces content? The page as posted has no real content. And if the page is posted for a year, I could then update the database with whatever text I wanted. The meaning of the page has changed, but it has not been reposted onto the server.

      Think of this in non-electronic terms. I publish a book that everyone supports. A year later people go to the bookstore and find that my book, with the same cover and publishing date, is now defamatory.

      So for static content, the posting date seems reasonable. For dynamic content, things need to be examined more closely. Things like page changes, DLL changes (in ASP.NET and presumably other languages, I can change the code of a page without touching the page itself), database records, etc need to be considered to determine a publication date.

  • Now? (Score:5, Funny)

    by sigemund ( 122744 ) on Thursday July 04, 2002 @11:35AM (#3822226)
    DARK HELMET: What the hell am I looking at? When does this happen in the movie?
    COL. SANDERS: Now. You're looking at now, sir. Everything that happens now is happening now.
    DARK HELMET: What happened to then?
    COL. SANDERS: We passed then.
    DARK HELMET: When?
    COL. SANDERS: Just now. We're at now, now.
    DARK HELMET: Go back to then.
    COL. SANDERS: When?
    DARK HELMET: Now!
    COL. SANDERS: Now?
    DARK HELMET: Now!
    COL. SANDERS: I can't.
    DARK HELMET: Why?
    COL. SANDERS: We missed it.
    DARK HELMET: When?
    COL. SANDERS: Just now.
    DARK HELMET: When will then be now?
    COL. SANDERS: Soon
  • Someone writes something in a newspaper, its printed on 1/1/2001. Some 3/3/2002, its 14 months old. Someone buys a copy of the paper off a friend that has kept it, and reads it.

    Does that change the date of publication?

  • Interesting with regard to my DMCA threats... (Score:5, Interesting)

    by Tom7 ( 102298 ) on Thursday July 04, 2002 @11:48AM (#3822282) Homepage Journal

    You guys might remember the DMCA Threats [cmu.edu] I received over my program embed (for TrueType fonts). I think this case has some interesting consequences for my fight, because I published my program in 1997 and haven't modified the page since. 1997 was before the DMCA became law. If in fact that publishing was found to be the only act of "trafficking", then they would not be able to sue me because of the ban on ex post facto laws in the constitution.

    Of course, that defense is much weaker than the dozens of other reasons why their threats are totally stupid. ;)

  • Another workaround would be to encrypt your data, and then have the key mysteriously appear online after a year. In this case, the more publically available the message was, the better.
    • Not really. By posting it encrypted you didn't "publish" it, but by giving out the key, you did... and that is when the clock starts.
      • The point is that you didn't *apparently* give out the key. If you later claimed that you only intended it to be viewed by another party (who held the appropriate key) at the time of posting, then it would start then.
        • It's published when a third party becomes able to view it. Your intentions are irrelevant. Subsequently, someone may read it. If they do, and they understand it, and it is true, and it is less than a year since it was published, and various other conditions hold, then your ass can be sued!
  • What I'm kind of curious about is how they are ever going to prove that the web page WAS in fact published. It would be really easy to download the front page of any web site, put in some defamatory comments, and then claim that it was published on such and such date. Don't get me wrong, I actually think this is one of the few YRO that strikes me as a step in the right direction, but I fail to see what the definitive criteria for establishing publication is. For someplace with lots of readers (like slashdot), it's easy, as there are plenty of witnesses, but something tells me not too many people visit or could vouch for my website on a regular basis. Any ideas on what you can do to protect yourself?
  • The "I" word is mentioned and common sense goes out of the window. Why does it have to be "special" just because the delivery mechanism is a web page? Is a book published everytime someone new reads it? And they spent time debating this?
  • so is that like an expiration date on internet posts now ??

  • is that the expiration date on internet posts now ??

    (POST DATE 07/04/2002)
    (SUE BY DATE 07/02/2003)
  • What about, for instance, weblogs, especially those powere dby Blogger [blogger.com]? When Blogger "publishes" a weblog page, the page may have several days of posts on it - so the original post may have been uploaded to the server a month ago, but it just got re-uploaded when the user published a new entry.

    Hmmm.

  • Time (Score:3, Informative)

    by barberio ( 42711 ) on Thursday July 04, 2002 @12:58PM (#3822629) Homepage
    Just to play devil's advocat, here is the oposite side of the argument.

    This question is made more dificult because the statute of limitations on libel is so small partialy because publishing is considered a timely issue. An article in a paper published a year ago is less damaging to you than one published yesterday.

    But on the internet, a webpage published a year ago is still there. It still comes up in search engines today, and is just as potentialy damaging as it was a year ago.
    • My argument to your devil's advocate is that a published work is still as feely available as the day it was published; not all but most published documents are still freely available in the public libraries of the world; in book stores; and in private archives. If I publish a libelous statement in a magazine or a newspaper, it would almost certainly be archived, and most documents these days have keywords added to enable searching for them. Often as easily as a document is searchable on the internet.

      You would have to assume that if they based this decision on the 1948 case, they had to consider that the 'act' occured when the document was published, not when someone read it. Therefore the same would be said for the internet, the act occurs when the writer writes it, and puts it in the public domain; not when the reader reads the offending material.
  • Geez, good thing the ruling went the way it did, or else you can be sure we'd have the RIAA and MPAA charging hard soon after to imply that copyrights on movies and music renewed every time someone listened to them. That would make the Sonny Bono copyright extension act almost laughable by comparison in terms of granting copyright near-perpetuity.

  • How would I know? (Score:4, Interesting)

    by martyb ( 196687 ) on Thursday July 04, 2002 @01:11PM (#3822685)

    How would I know when I have been defamed (or slandered, libeled, etc.)?

    Do I have to Google [google.com] myself?
    I've lived a full life, so far. Attended college. Worked at a number of high-tech companies. Participated in several civic organizations. Traveled in Europe. Though I've tried not to, I'm sure I've ticked some people off along the way.

    Now let's imagine that one of my former acquaintences gets a computer, creates a personal web page, and still holding a grudge, defames me on their web site.

    My name is relatively uncommon, yet Google found well over 600 pages with my name on it (I didn't even know I'd been to Antarctica! =)... and that's for just one form of my name (First name, Last Name); I'm sure there'd be more if I searched for other variants (e.g. "Marty" instead of "Martin", include middle name, common misspellings of my last name, etc.) I would need to examine every one of these pages to see if any defamatory material had been published.

    • How often would I need to repeat this task? Monthly?
    • What if it were not indexed by Google, but WAS indexed by AltaVista [altavista.com]?
    • How many different search engines must I search to make sure I didn't miss anything?
    • What if my name were "John Smith"? (Google reports about 336,000 matches!)
    • What if the attack were in a language in which I am not fluent? (e.g.: Spanish, Russian, or Hebrew.)
    • What if the attack appeared on Usenet instead of the world wide web?
    • What if the attack were presented as a GIF image whose "contents" were text."

    Consider, too, what happens if my career path changes so that I came to have a highly-visibile role as, say, a CEO, Senator, recognized industry expert, or talk-show host? Far more references to my name that I'd have to search for defamation. Ditto if I were a witness to a gruesome crime or accident.

    In the past, publication was difficult and required relatively large amounts of money (for the printing press, book binding machine, etc.) and specialized expertise (e.g. typesetting). That is no longer the case. The first liberating step was desktop publishing; now there's the World Wide Web. What will another 10 or 20 years bring? Consider a groundswell of interest in weblogs facilitated by text-to-speech web publishing using a cell phone for input.

    IMHO, I think the court ruled as best they could in light of the circumstances of this particular case, but I can't help but think there's a far larger problem here that needs to be adressed.

    • Most things published on the Web have about the same credibility level and duration as something that someone said in the bathroom to someone at the urinal next to them.

      Were I a public figure defamed on a website, I'd simply ignore it. Suing the person could give them more publicity, and often more good is gained by not giving rumors credibility by fighting them.

      That having been said, if you're *really* concerned, there are services out there that specialize in looking for mentions of your name or company so you can tell what people are saying about you.

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