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Publishing Now Counts As Now
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."
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!
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.
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
Play with my webcams and lights here
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.
You guys might remember the DMCA Threats 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. ;)
I won't make any comments about troll schools, but copyright is related: copyright lasts for a limited time (does anyone still know this?), and for works owned by corporations, the clock starts ticking at the date of first publication.
The movie industry has in the past tried to manipulate this by claiming that movies were "unpublished" even after being shown in theaters, because no copies of the reels were sold. They had to give this up in order to sell videos though :)
Now, if there were a decision (even in an unrelated area such as defamation) that the "publication date" of a web page is the last time it was viewed, then I expect that the copyright industry would indeed try to use this to extend copyright forever.
How would I know when I have been defamed (or slandered, libeled, etc.)?
Do I have to Google 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.
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.
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!
If you were blocking sigs, you wouldn't have to read this.