Steffi Graf Wins Case Vs. Microsoft

scaramush writes: "The AP is reporting that Steffi Graf has won her lawsuit against Microsoft for hosting nude doctored photos of her. Although Microsoft had removed the images when they appeared in June, MS declined to sign a formal agreement that they would not appear again. This is the second loss for MS in this case. Scary precedent."

So.... confused...

Don't know what to think... Microsoft evil... yet... Microsoft right... too much... head pain...

*POP*

Re:Libel precedent?

I can hear the tabloids blinking out of existence as we speak...

For a PUBLICATION such as a tabloid, what reason would they or should they be permitted to not sign such an agreement. The problem HERE is that USERS are posting the photos and Microsoft is removing them as requested.

Stefi Graf says Microsoft should promise that it will examine every photo and won't allow these pictures to be posted. This has very bad implications for user based public forums (I.E. everything must edited by the host company or it is liable for damages.

Someone is missing the point here ...

Microsoft, as an ISP, hosting someone's pictures, is successfully sued for hosting those images. The point is not that it's Microsoft, the point is that an ISP has lost the case. Although it's definitely of interest that even Microsoft is not immune to this sort of suit. This case is a set-back to ISPs everywhere.

Re:Someone is missing the point here ...

This [slashdot.org] is exactly [slashdot.org] what whackos [slashdot.org] like the "Church" of Scientology [xenu.net] need to sue the internet out of existance [slashdot.org]

Point taken

This is a worst defeat for ISPs than you can consider *because* it goes against a big giant like M$. And if M$.com can be liable, who knows what could happen to the mom-and-pop ISPs with the deep pockets or the legend of lawyers.

That loud SLAPPing sound in the background is getting closer.

Re:Point taken

That loud SLAPPing sound in the background is getting closer.

You mean that in the lawsuit sense, right? Not the "nude pictures of Steffi Graf" sense?

-schussat

Set back in Germany...

The set back here happened in Germany, which continues to bring into question the legitimacy of national courts in the international medium of the Internet. Micrsoft does business in Germany and will, of course, comply with the verdict to avoid pissing the Germans off. What if Microsoft had no direct dealings with Germany though?

Eventually a court case will come up in some major venue (the US, or a major eurpoean country I'd guess) that will be promptly ignored by the party involved because they don't operate under that country's jurisdiction. Then who knows what will happen.

Re:Someone is missing the point here ...

Ahh, no. Microsoft as an ISP who claims the rights to everything that is put on their site (at least at the time when this all happened) has lost the case. IOW MS lost because they are evil .

Why this case?

Of all the cases I wanted Microsoft to lose, this is not one of them. ISP's cannot promise that their users will never upload a given photo, unless they get in the business of reviewing each and every upload. And that would be a monstrous slap in the face of free speech, as well as creating a huge workload for ISP's (and raising costs accordingly.)

Not to flog the dead horse, but it's more evidence of ways in which the private sector is quite happy to cramp civil liberties for its own purposes, using civil law.

Re:"Scary Precedent"? Um, what?

I guess it's a really scary precedent if you're intent on publishing libelous material online.

For the rest of us, Our Rights Online are not affected. Next Chicken Little story, please.

As others have pointed out, the scary part is that an ISP (in this case, Microsoft) is being held liable for material posted by its users.

The precedent part is somewhat less relevant as the German legal system does not rely on precedent the same way as the US or British systems do.

-Isaac

Re:"Scary Precedent"? Um, what?

"The photos... appeared last year on the site operated by Microsoft Germany where users could post pictures and texts to share with others".

Microsoft was merely acting as ISP in this case.

This has been said many times in this article, so I'm not picking on you specifically. I just picked this post to respond to.

MS was *not* acting as an ISP in this situation. Do you see where you said "on the site operated by Microsoft". In this situation they were a hosting provider. The picture was posted on some MSN community or similar. No one said that whoever posted the picture used them to dial up to the internet.
Further MS claims in their terms that they own all of the content on the site. So they are the host of the material and further they claim to own it as well. This makes them the publisher. In this case MS's draconian license scheme backfired and they *are* liable. If they had some disclaimer like at the top of this page:

The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.

then they would *not* have been liable. Since they provide the web space *and* they feel that this entitles them to ownership of anything anyone else makes and posts there, they got screwed in this case.

Re:"Scary Precedent"? Um, what?

Microsoft didnt post it, a person on one of their sites posted it "where users could post pictures and texts to share with others"

this precedent, should scare you...

One case MS should have one...

As much as I dislike MS most of the time, this is one time they should have won in court. They did take the pictures down, but lets face it, there's no way to make sure it doesn't happen again unless you have people sitting there 24 hours reloading the webpages ready to delete any picture that shows up. Or you could disallow pictures all together. I dislike forum sites that all images in sigs, but I think people able to post images to a forum is fine. Of course the individuals who actually posted the pics are the ones that should have been in court, but that's besides the point.

Once compaines are afraid to let communities post pics, its not that far to stop posting of comments as well (its a bit of a slippery slope I know). I'm all for the open expression of opinion and beliefs, and I do believe that once contacted, the webmaster/admin should remove the pics, but they shouldn't be fine because the pics were there.

How do you control what someone might post

How do they expect board operators to control what someone might post. I can understand the board operators being forced to remove these pictures, but it's nearly impossible for them to prevent doctored pictures don't show up. I keep being more and more amazed at the narrow mindedness of courts all over the world.

Conflicting Slashdot Views?

Wow, I took one look at this article and thought, "Hurray! Microsoft lost a legal battle. Chalk one more up for Open Source!" Yeah, then I clicked the link only to find they lost a case dealing with the openness and freeness of the internet. Just think of the precedent this sets if a web site's owner is responsible for the content other, perhaps anonymous users post on his/her website. Wouldn't that make CmdrTaco liable if I posted the source to DeCSS in one of the comments? (just an example, folks)

Well that brings up the interesting case of conflicting /. views. Think about it: Well, we generally hate Microsoft, but we also hate censorship on the internet. Here, Microsoft and censorship are on opposite sides. Where does that leave us? Oof, good question.

Bottom line: scary precedent.

Hargun

what do you expect?

Its not the criminals fault, its the gun's
Its not the pirates fault, it's Napster's
Its not the poster's fault, it's the ISP's

noboby is guilty of anything, its the tool's fault... doesnt that make everyone feel better about themselves?

Re:what do you expect?

"Its not the pirates fault, it's Napster's"

I agree that there are parallel's to the Napster case, but I believe that this case is actually slightly worse (and, depending on your perspective, on the opposite side of right vs. wrong).

With Napster, they created a service that was intended, from day 1, for heavy trafficking in copyrighted material. From what I understand, Napster went as far as to advertise the prevalence of popular artists on their service. Such knowledge is a key part of charging them with indirect copyright infringement (either contributory or vicarious -- I'm not up to date on the details).

With Microsoft, on the other hand, they apparently had a service that was no different from your standard message board with image attachments turned on. While there's no mention in the article of the theme of the board, there's nothing to imply an intent to profit off the indirect sharing of libelous material. That makes them (arguably) more innocent.

So even if you disagree with whether or not Napster's intent (or alleged intent if you disagree on the intent itself) pushes them into the guilt zone, it seems that Microsoft was standing in a less ambiguous position when they got nabbed. And that really worries me, simply because it implies that a court decision has crossed the invisible line (at least in my own mind) the stands between "Oh well." and "Uh oh."

Re:Its not the criminals fault, its the gun's

Its not the criminals fault, its the gun's

This is more of a gray area than people realize. Certainly, it's the criminal's *fault*, but there is a logical argument to restrict the enabling technology if the result of its use is particularly destructive.

For instance, if you wanted to carry a nuclear weapon in a backpack around NYC, you could theoretically use the same argument: so long as the radioactive material is properly shielded, there's no harm done to anyone unless you detonate the bomb. However, the consequences of you using it are catastrophic, so it's illegal for you to possess such a device (at least I sure hope it is!).

Now, gun control seems like such a divided issue because people are divided over the severity of what happens when they are used. Many people do actually choose to use weapons in harmful ways, and yes, it is THEIR fault. However, since you can't easily stop someone from shooting you if they already have a gun in their hand, the idea of gun control is to eliminate the risk by not giving you the opportunity.

Certainly, there are lots of arguments on both sides, including one of feasibility... supposedly there are more guns in the U.S. than there are people, and you aren't going to just tell people to turn them in and expect them to do it. That wouldn't work.

Getting back on topic, this article is kind of the same: force the ISP to check all content before it goes online. This prevents a malicious user from posting malicious content, but seems to put blame on the ISP, when we know it should be put on the user him/herself. Again, we need to assess the risk of damage caused by a malicious user, and compare it with the cost to all the non-malicious users.

Personally, I'm pulling for the free speech side here, but I'm just a silly Canadian, so don't mind me. ;^)

This is misleading...

This is a case in Germany, under German law, against the German division of Microsoft. From the article:

• "...Steffi Graf won a court case against Microsoft Germany..." (my emphasis)

Frightening though it may be, this isn't about any of the draconian US laws.

Why this is a good thing

This is a good thing because it's a bad thing (yes, yes, I realise that's pompous). The precedent set is disquieting. But it was always going to happen; in either large chunks or small bites (perhaps both) the responsibility of ISPs was always going to be defined this way. People suing because they don't like what they see, and ISPs saying "but we're a common carrier, it's not our fault" in court cases.

So anyway, this is good because it's not a mom and pop ISP. This is someone who can afford to press a point, if it's worth it to them. Thus it opens the potential for a real debate on these issues. If it were an easily-trampled minnow, that wouldn't happen.

In this case, be happy it's Microsoft. Your enemy's enemy and all that...

Re:In other news...

It's what seperates us from religious zealots. Yes, we hate MS, but we know right from wrong, and MS was wronged here.

Anyone who would use a story like this to bash MS, now they are the zealots. It's an interesting experiment. Might make for a good time to make friends/foes.

Of course she won...

Microsoft has a weak backhand.

Okay, who was the wise guy who posted this under "The Courts"? Ha ha.

In related news

Bea Arthur is outraged that they put steffi graff's head on her body.

microsoft was bitten by own eula

from what i remember i read about it there was an eula to access/post images/write stuff that you had to agree with before getting you login data.
it happens that in this eula there was a part that said something along the lines of "all content postet/written goes over into microsofts ownership".
so when the pics were postet microsoft got ownership and so microsoft was sued because hosting said pictures that they claimed ownership for through their eula.
the eula was changed shortly after.

so there.. read it up before coming up with german/nazi like acusations.

MAKE MONEY FAST

This is how you use this precedent to MAKE MONEY FAST from home, AND hurt big bad Microsoft to boot:

1. Find nudie pics on the internet. If you fail this, kill yourself immediately.
2. Put pictures of your own head on the naked bodies.
3. From an internet cafe, create an account with a fake name on Microsoft Germanies photo sharing/whatever site. Upload the pictures to this site.
4. Sue Microsoft Germany for posting fake nude images of you on the net. Tell them to sign a formal agreement that they will not appear again. If they won't, you get money. If they do sign, post the images again and sue them for breach of contact, and get money.
5. Repeat until rich.

Re:The real reason why Microsoft lost...

And here's what MSN.com's current "photos" agreement says:

MSN Photos In addition to the warranty and representation set forth in these Terms of Use, by Posting a Submission that contain images, photographs, pictures or that are otherwise graphical in whole or in part ("Pictures"), you warrant and represent that (a) you are the copyright owner of such Picture, or that the copyright owner of such Picture has granted you permission to use such Picture or any content and/or images contained in such Picture consistent with the manner and purpose of your use and as otherwise permitted by these Terms of Use and the MSN Site/Services, (b) you have the rights necessary to grant the licenses and sublicenses described in these Terms of Use, and (c) that each person depicted in such Picture, if any, has provided consent to the use of the Picture as set forth in these Terms of Use, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Picture. By Posting a Picture, you are granting (a) to all members of your private community (for each such Picture available to members of such private community), (b) to the general public (for each such Picture available anywhere on the MSN Web Site, other than a private community), and/or (c) to any person with whom whom you share Pictures through e-mail using the MSN Site/Services, permission to use your Picture in connection with the use, as permitted by these Terms of Use, of any MSN Site/Service, (including, by way of example, and not as a limitation, downloading, printing and making prints and gift items which include such Picture), and including, without limitation, a non-exclusive, world-wide, royalty-free license to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Picture without having your name attached to such Picture, and the right to sublicense such rights to any supplier of such MSN Site/Service. The licenses granted in the preceding sentences for a Picture will terminate at the time you completely remove such Picture from the MSN Web Site, provided that, such termination shall not affect any licenses granted in connection with such Picture prior to the time you completely remove such Picture. No compensation will be paid with respect to the use of your Picture."

Not only are they conceding that the poster has the liability, but they are granting everyone else in the world the right to edit and re-publish your photo without your consent!

CYA has become a new art form in the Redmond law offices, I guess.

Nothing new here.

AOL has been busted with the same suit, also in Germany. Some AOLuser posted porn on their private web space and AOL was found liable. That case was 2-3 years old. As much as I despise AOL, I think the ruling is ridiculous. There is simply no way an ISP can monitor everything its lusers do.

Well, at least with this ruling Microsoft might be able to buy some polititians to get the law changed. But then I would have expected AOL to do that a long time ago. Any Germans care to comment?

She didn't win the lawsuit

She won the Gerichtsprozess.

At the risk of not fitting in ...

I'd like to opine that this is something that Microsoft richly deserves, and it likely won't be much of a precendent at all.

We've read several news stories about MSN's TOS that gives them ownership of everything on customers' web sites. We've read the stories about their lifting images from customers' web sites and using them in ads. Microsoft's attitude all along has been that they own everything on their machines.

So it's not at all odd that they should be held legally responsible for images that they claim to own.

Lawyers have been pointing out for some time that the way out of this is for ISPs to simply declare that they are merely "carriers" and aren't responsible for the contents of customers' files or communications. A century of precendent with services like the phone system supports the idea that a common carrier can't be made to police the communications over its lines. The communications are the property of the customers, not the company.

Similarly, the corporations (mostly governmental) that maintain the streets and highways aren't responsible for the legality of cargo carried by users' vehicles.

It's likely that the real outcome of this will be to stop Microsoft's attempts to claim ownership of everything produced by their customers. If they persist in making such claims, they will be held liable for the contents of their files, and will be forced to hire staff to examine each and every file on every customer's web site. This will be so expensive that they'll have to either give up the ISP business or declare that they don't own customers' files.

What we want is a situation where we can all put whatever we want on our web sites, and the ISPs can't interfere. Legality should be strictly between a site's owner and the local governments. We want the ISPs to keep their noses out of our content.

Microsoft has just had its nose slapped.

read the court's explanation

This ruling does not actually apply to all forums. For instance, Slashdot would not be affected. The court's explanation [olg-koeln.nrw.de] (google translation [google.com]) clearly states that the decision was based on the fact that Microsoft has "acquired" the posted information by closely integrating it into their site and, more importantly, by claiming rights to it.

Re:The burden of 0wnership

In their old terms of use they claimed ownership of all contend they were hosting for you. So it became their property, and they were possibly making money of it.

If this is true, then this court case is absolutely on the money. We should give our German friends the benefit of the doubt.

MS can't have it both ways. I assume they demanded ownership of the content so that they could remove content they did not want posted - like anti-MS rants etc. However, when they were held responsible for the "property" they demanded, they tried to claim it was the website "owner's" responsibility.

This is not a frightening precedent at all, and it doesn't apply to any ISP with normal terms of service. MS just got exactly what it deserved.

I repeat - SHOULD NOT APPLY TO THE REST OF THE NET. Move along. Nothing to see here.