Double Trouble for Deja.com

“For sale, Inter­net his­tor­i­cal doc­u­ments and legal trou­ble. Call Deja.com for details.”

This is not exactly the way Deja.com pre­sented them­selves but ulti­mately, this may be what tran­spires from their recent attempt to put the Usenet archives on sale.

Usenet His­tory

For those of you who have never heard of Usenet, here’s a quick def­i­n­i­tion from the Usenet FAQ:

Usenet is a world-wide dis­trib­uted dis­cus­sion sys­tem. It con­sists of a set of “news­groups” with names that are clas­si­fied hier­ar­chi­cally by sub­ject. “Arti­cles” or “mes­sages” are “posted” to these news­groups by peo­ple on com­put­ers with the appro­pri­ate soft­ware — these arti­cles are then broad­cast to other inter­con­nected com­puter sys­tems via a wide vari­ety of networks.Some news­groups are “mod­er­ated”; in these news­groups, the arti­cles are first sent to a mod­er­a­tor for approval before appear­ing in the news­group. Usenet is avail­able on a wide vari­ety of com­puter sys­tems and net­works, but the bulk of mod­ern Usenet traf­fic is trans­ported over either the Inter­net or UUCP.

To put it sim­ply, prior to the web, Usenet was what defined the Inter­net as a com­mu­nity. It cov­ers sub­jects rang­ing from pol­i­tics to com­put­ing, arts to news, and every­thing in between. Usenet, to the old timers was the town square. It was the place where jobs were posted, dis­cus­sions about tech­ni­cal stan­dards were going on and the lat­est movies or TV shows were dis­sected. It was on Usenet that Tim Bern­ers Lee first announced his devel­op­ment of the World Wide Web, and it was also there that Marc Andreesen announced the release of Mosaic (the PC and Mac browser that pop­u­lar­ized the web) and the sub­se­quent launch of Netscape.

To put it quite sim­ply, Usenet archives doc­u­ment the early days of the Inter­net (well, 1981-present any­ways) in a way that no other place on the Inter­net does. As a result, I would ven­ture to say that they are his­tor­i­cally sig­nif­i­cant doc­u­ments that should be held in the pub­lic domain, much like other his­tor­i­cal records are. The Usenet Archives are not some­thing that should be a pri­vate property.

In the mid-90s, Deja.com, then known as DejaNews, took on the mis­sion and started archiv­ing Usenet mate­ri­als. The com­mu­nity was happy to find some­one will­ing to do so and let Deja.com do it, assum­ing that it would remain faith­ful to the orig­i­nal code of shar­ing that then existed on the Inter­net. The model was Usenet plus ads, which would, accord­ing to a pop­u­lar view on the net, help con­serve these his­tor­i­cal doc­u­ments while cov­er­ing costs and mak­ing a mod­est profit.

But Deja.com decided to shed its orig­i­nal mis­sion, refash­ion­ing itself as a con­sumer advice por­tal instead of going the non-profit route as the Inter­net Archive did, and here the trou­ble started. Now mov­ing away from con­ser­va­tion, Deja.com first started push­ing the Usenet archives to the back. Then, dur­ing a sys­tem upgrade, Deja.com decided to take those archives offline. And now we learn that they are going to sell them off to the high­est bidder.

In fair­ness to Deja.com, they did a great job in pre­serv­ing mate­r­ial that may have oth­er­wise dis­ap­peared. How­ever there are sev­eral legal ques­tions to deal with when con­sid­er­ing such a sale. Today, we take a look at those issues.

Copy­right Issues

Accord­ing to 10 Big Myths about Copy­right, most of the con­tent on Usenet is cov­ered by copy­right law. But it is unlikely Deja.com holds copy­right on that con­tent. They are sell­ing the intel­lec­tual prop­erty of the mil­lions of peo­ple who have posted to Usenet. In doing so, they are break­ing sev­eral laws, both in the United States and abroad.

For starters, they are in vio­la­tion of Title 17 of the US Code, which cov­ers copy­right and copy­right trans­fers in the United States and Title I of the Dig­i­tal Mil­len­nium Copy­right Act, which extends copy­right pro­tec­tion to dig­i­tal works. Under the pro­vi­sions of both those acts, no one can profit from a Usenet post unless they have received an express grant to do so from the author of that post. As far as I know, I have never for­mally granted Deja a right to carry my Usenet post­ings and the peo­ple I sur­veyed had not done so either. I don’t want to over-generalize but it would be my guess that most of the peo­ple who have posted arti­cles to Usenet have never granted Deja the right to repro­duce them and, as such, there are hun­dreds of thou­sands, if not mil­lions of peo­ple who are owed by Deja.com.

Going to an inter­na­tional level, they are in vio­la­tion of Arti­cle 9 of the Berne Con­ven­tion on Copy­rights, Annex 1c of the 1994 WTO Agree­ment on Trade-Related Aspects of Intel­lec­tual Prop­erty Rights, Arti­cle 5 of the Uni­ver­sal Copy­right Con­ven­tion. Those essen­tially all cover the same thing, which is the issue of copy­right trans­fer (get­ting the right to repro­duce con­tent from the con­tent cre­ator) and the right to redis­trib­ute those copies.

Under both US and Inter­na­tional sta­tus, Deja.com would be in vio­la­tion of so many copy­right rules that it would cost them more to defend a law­suit aris­ing from the vio­la­tion than what­ever pro­ceeds they made from the sale. In order to fully com­ply with copy­right law, Deja.com would have to obtain approval from every sin­gle per­son to have posted to Usenet dur­ing the period cov­ered by the archives… or from their heirs if the per­son has died. See, the prob­lem is that Copy­right extends to 50 years beyond the life of a per­son. As we know, Usenet is less than 50 years old, which means that EVERY post on it is cov­ered under copy­right law. The exer­cise, though, seems to be one in futil­ity as peo­ple may have changed email addresses or dis­ap­peared alto­gether from the net. As a result, it is impos­si­ble for Deja.com or the pur­chaser to be in com­pli­ance with copy­right law. Seems to me that this is a class action law­suit in waiting.

Pri­vacy Law

In the United States, con­sumer data is not as well pro­tected as it is in Europe. Ger­many and France, for exam­ple, have poli­cies that for­bid gath­er­ing any kind of data from con­sumers with­out their prior approval. This includes data that would be entered in a form as well as data that would be gath­ered through the use of a cookie.

The 1995 Euro­pean Direc­tive on Data Pro­tec­tion was enacted to con­trol the use of per­sonal infor­ma­tion gath­ered on Euro­pean cit­i­zens. It has already been put into law by eight of the fif­teen Euro­pean Union coun­tries. The law does not allow Amer­i­can com­pa­nies to gather any data on Euro­pean con­sumers because there is a lack of pro­tec­tion for per­sonal data in the United States. This means that any data gath­ered about Euro­peans has to stay in Europe. If you trans­fer that infor­ma­tion from a cus­tomer based in Europe to a server based in the United States, you are in vio­la­tion of that direc­tive. Tech­ni­cally, each of the sig­na­tory coun­tries could take you to court over that gath­ered data.

Since Usenet is a world­wide sys­tem, Deja.com is already in trou­ble for trans­fer­ring infor­ma­tion from Europe to the US. As far as the net was con­cerned, it was fine when Deja was col­lect­ing archives as a pub­lic ser­vice but now that money is involved, this could become a legal quag­mire for the poten­tial new owner.

Under the Direc­tive, Euro­pean con­sumers are also granted a num­ber of impor­tant rights and may appeal to their local gov­ern­ment if they con­sider their rights are not being respected. Among the rights cov­ered are:

• The right to know what the data will be used for, includ­ing who will use it and how it will be used
• The right to access per­sonal infor­ma­tion upon request.
• The right to rec­tify infor­ma­tion. This means that the cus­tomer must be able to change the infor­ma­tion if it is incorrect.

The direc­tive also says that in the case of sen­si­tive data, such as an individual’s eth­nic or racial ori­gin, polit­i­cal or reli­gious beliefs, trade union mem­ber­ship or data con­cern­ing health or sex­ual life, the Direc­tive estab­lishes that such data can only be processed with the explicit con­sent of the indi­vid­ual, sub­ject to a num­ber of exemp­tions for spe­cific cases such as con­sent of the data sub­ject or where there is an impor­tant pub­lic inter­est where alter­na­tive safe­guards have to be established.

Now, what does this have to do with Usenet News? Well, based on the con­tent that is posted to Usenet, a lot of per­sonal data can be culled. This infor­ma­tion can then be used for pur­poses other than orig­i­nally planned. Under the Euro­pean pri­vacy dic­tums, the data on Usenet could be pro­tected by pri­vacy rules and rep­re­sents another legal minefield.

Defama­tion and Link­ing Issues

Beyond the pos­si­ble pri­vacy impli­ca­tions at hand here, users could also com­plain about defama­tion of char­ac­ter in a Usenet news­group. A ques­tion that I have for the legal schol­ars on this list is whether Deja.com could be cited as a co-plaintiff in a law­suit aris­ing out of a defam­a­tory post. Based on my cur­sory knowl­edge of the law, I think they could argue that they are cov­ered under Lun­ney v. Prodigy Servs. Co., which said that Prodigy was just a com­mon car­rier and could not be held account­able for car­ry­ing defam­a­tory con­tent as long as it wasn’t edit­ing the con­tent. How­ever, Brown v. City Col­lege of San Fran­cisco, which arose out of the link­ing to defam­a­tory com­ments could be and issue for Deja’s archives and their link­ing to defam­a­tory comment.

Also of con­cern is DecSS. Buried deep inside Deja’s archives are links to sites that allow for DecSS to be down­loaded. In the first inter­pre­ta­tion of the DMCA, a judge ruled that link­ing to ille­gal code is a vio­la­tion of copy­right law. As a result, could Deja be held account­able for link­ing to DecSS down­load sites? Could they pos­si­bly be sued for not cut­ting those pages out of the archive? Once again, we are talk­ing about tricky legal issues cov­er­ing the right to link to cer­tain soft­ware and the com­mon car­rier pro­vi­sions. And that’s not even talk­ing about links to ille­gal soft­ware ema­nat­ing from the Deja.com site. By pro­vid­ing news groups that offer ille­gal pass­words and links to copies of cracked soft­ware, doesn’t Deja break the law? Con­sid­er­ing that Deja.com does not carry ALL news­groups (for exam­ple, notice the miss­ing talk.rumors news­group which is listed in Lizst but not Deja.com), does its selec­tion of the news­groups it sup­port imply an endorse­ment of those news­groups? And if that is the case, isn’t Deja.com then respon­si­ble for the con­tent of those newsgroup?

All and all, it looks like Deja.com may be get­ting itself in hot water from a legal stand­point. Should it trans­fer the archive to a pub­lic orga­ni­za­tion, it might be able to side­step a num­ber of those issues by hav­ing the archives be held for the pub­lic good. How­ever, a pub­lic insti­tu­tion will prob­a­bly not be the high­est bid­der and the new owner may end up with more than it’s bar­gained for when mak­ing the purchase.

On the other hand, Deja.com could try to spin the archive into a non-profit orga­ni­za­tion and ask for immu­nity from pros­e­cu­tion in exchange for main­te­nance of an impor­tant his­tor­i­cal entity.