Clever Girl

You know that bit in "Jurassic Park" where the big-game hunter guy (the one with the bush hat) is stalking the velociraptor only to find he's been stalked by the other velociraptors? He says, "clever girl".

This *is* clever. But not clever in a humans-going-to-get-eaten kind of way.

There's this blogging/journaling/what-have-you system called LiveJournal, much like Blogger in that it's offsite from the user, it's not something you install yourself and run on your own website. It has an interesting function that seems unique to blogging called 'friending'. If you friend someone, you can make posts to your LiveJournal that only *they* can read. So, LiveJournal has public posts and posts that your 'friends' have to log into LiveJournal themselves to see.

There's also this brand-new archiving system someone wrote called Frienditto, that lets you archive any public (non-friend-'locked') post on LiveJournal onto another server. Allegedly, it doesn't retain any information about the person doing the archiving, which seems pretty useless to me for people who want to mirror their own journals for redundancy purposes, because you can't find anything and you can't seem to search Frienditto entries by LiveJournal username or anything.

So, the point of this software, at first glance, seems to be to make it easy for people to make copies of OTHER LiveJournal user's posts to their LiveJournal.

The problem with that is that the author may not have given permission for their work to be copied on Frienditto, in which case the archivist has just infringed copyright.

The even bigger problem is that there's additional functionality that permits 'friends' to enter their LiveJournal username and password into Frienditto - a very stupid thing indeed for a LiveJournal user to do, from a security perspective - and the URL of one of *your* friend-'locked' posts, and archive *it*, making a quasi-private post ('friends'-only) in a semi-closed community (only LiveJournal users can 'friend' other LiveJournal users) completely public on another website.

Aye, *there's* the rub.

Now, then. Follow this:

1. Frienditto's TOS (the contract with their users) indemnifies themselves and places all responsibility (or tries to) on the user. That's the archivist, the person archiving a post onto Friendditto. Not the copyright owner, unless they happen to be one and the same.

Note, there's lots of stuff in contracts law about whether a boilerplate contract like this is enforceable. That's beside the point, as archivists who want to sue FD can't show they've been injured by FD, *because*,

2. The Frienditto software system destroys information about the archivist, from every archived post. Deliberately. Anonymity of the archivist is described as a core function of the software in the FAQ.

3. Their TOS and legal policy are only going to be read (if at all) by someone archiving posts. Not necessarily by the copyright holder. The copyright owner makes no agreements, implicit or explict, with Frienditto.

4. You as copyright holder don't know who to sue for copyright infringement.

This completely destroys accountability - you can't sue the archivist because you don't know who they are, and Frienditto will just say "oh, we're providing a service, it's the users who are violating your copyright". Which won't, in the long run, in my first-year-legal-scholar opinion, wash, for a couple reasons (and probably many more):

a. ISPs have consistently been responsible - or held responsible - for policing their users for copyright infringement, or at least violations of the TOS. Regardless of which of their users put something copyright-infringing up, an ISP will take it down once their attention is drawn to it.
b. If you took FD to court, I think you could argue that their software is, at its core, for the purpose of infringing copyright, and very little other purpose, if any (which is the kind of question they wrangle over in court about Napster and file-sharing and whatnot), and that FD knew or should've have known this use would occur, and did nothing to prevent it.


My bet is the velociraptor's going to go down on this one. Clever. But cute clever, not copyright-owners-are-screwed clever. 'Sides, their legal policy (http://www.frienditto.com/legal.php) says they'll honor a request from a copyright owner to remove material. I think everyone on LiveJournal should pre-emptively request that their material not by archived there.