“For sale, Internet historical documents and legal trouble.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.
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 The model was Usenet plus ads, which would, according to a popular view on the net, help conserve these historical documents while covering costs and making a modest profit.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.
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.
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.