Clever Girl, Part II

A bit more reading on Frienditto's legal policy. See my previous post. It's all so fascinating. Bear in mind that when I talk about copyright owner and archivist, I'm doing so on the hypothetical that they're two separate users.

6. Copyright infringement
The Service does not make any claim to copyright for any of the user entries submitted and will immediately remove any content with a proper request from the copyright owner. Users of the Service agree that at the time of submission they have proper permissions from the copyright owner. Frienditto does maintain copyright to all pages that it creates or generates, exclusive of the archived entry content.

Here's their statement that they will recognize an owner's copyright.

8. User Conduct
While using the Service, you agree not to engage in any criminal, threatening, harassing or indecent behavior. Violation of this clause may result in immediate termination of access.

How? How can you terminate access to someone that's completely anonymous, in the case of archiving public posts? In the case of someone who's archiving 'friend-locked' posts, you have their username and could try to blacklist them, but doing so would only be an incomplete termination of access to Frienditto, because they could still archive LiveJournal posts anonymously. Just not 'friend-locked' posts.

9. Violations and Grievances
To report any violations of this agreement or to file a grievance, please contact the administrator at legalthreats@frienditto.com. We will make every effort to get to your report or request in a timely fashion. Plz to be advised that any information sent to this email address other than legal threats will be ignored. Please do not make repeated submissions, as this will generally not expedite the handling of your report or request.

10. Correspondence with Frienditto
Should you choose to present your e-mail address, physical home address, telephone number, full name or other personally identifying information to Frienditto by any means whatsoever, we reserve the right to publish said personal information in whole or in part. Should you chose to contact any member of Frienditto.com by any communication means, Frienditto reserves the right to publish the conversation, in whole or in part, as seen fit to do so. Any and all e-mails may also be published in whole or in part. By communicating with Frienditto.com staff, you consent to said publication and acknowledge you have no expectation of privacy whatsoever under federal or state law for materials discussed and/or submitted. Legally privledged materials and communication, and/or communication concerning an active ongoing law enforcement investigation will be kept confidential as required by law.

God, I love my contracts teacher.

This, friends, is an unconscionable adhesion contract. Here, look: You can't contact Frienditto without consenting to this arrangement, so there's no real consent on your part. That's procedural unconscionability right there! And substantively, if you're reporting an infringement and requesting removal of material, you can't do so without more copyright infringement - the very problem you're contacting them trying to resolve. This policy is being used as a threat against copyright owners to keep them quiet out of fear of further infringement. In addition, there's no consideration being offered the copyright owner here - no benefit, as the infringement the owner is asking to have removed is in bad faith to begin with. Frienditto has already posited it as an obligation (and even if they didn't, it would be one, it against the law to infringe copyright); fulfilling a duty because you ask them to is not the same thing as offering an actual benefit to you.

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.

Another Materialistic Moment

I want The Cocktailian Gazette.

A forum for mixology and barware scholars that's long been overdue, the first annual volume of Mixologist: The Journal of the American Cocktail (ISBN: 0-9760937-0-7)will come hot off the presses on March 21, 2005.

This just sounds cool.

(Thanks to Looka, for the tip.)

If America Is Richer, Why Are Its Families So Much Less Secure?

All this "we're America, the business frontier, where you make or break on your own merit" baloney is just that: baloney. (And I say that as a frontier gel mah ownself.)

If America Is Richer, Why Are Its Families So Much Less Secure?

Los Angeles Times reporter Peter G. Gosselin has spent the last year examining an American paradox: Why so many families report being financially less secure even as the nation has grown more prosperous. The answer lies in a quarter-century-long shift of economic risks from the broad shoulders of business and government to the backs of working families. Safety nets that once protected Americans from economic turbulence — safeguards like unemployment compensation and employer loyalty — have eroded or vanished. Familes are more vulnerable to sudden shifts in the economy than any time since the Great Depression. The result is a daunting "New Deal" for many working Americans — one that compels them to cope, largely on their own, with financial forces far beyond their control.