RE: FRAUD on the digest

[Richard Welty <rwelty@domain.elided>]

At 01:32 PM 5/20/99 -0400, Richard Welty wrote:
>as the owner/operator of krusty-motorsports.com, the host of this list, i
>tend to get a little uncomfortable when these sorts of postings start
>flying. while technially, as a service provider, i'm completely immunized
>against civil penalties as a result of third party statements on this list,
>i still would incur the costs of any $130 letter from a lawyer on the
subject.

i decided i'd like to clarify this a little more.

last fall, i was threatened with a lawsuit over content posted to one of
the digests by another party who deemed himself injured (which digest and
the actual parties involved are irrelevant to this posting; more over,
naming names would be unwise on my part because the issue hasn't truly gone
away for me & krusty, but only become quiet for the time being, a time
being which could conceiveably be forever, but it could pop up again
tomorrow.)

i was threatened because it was argued that i have the standing of a
publisher.

many of you are familiar with the ill-fated CDA, a law which congress
passed in an attempt to get control over certain types of content on the
net. it is true that the Supreme Court has overturned certain parts of the
CDA over first amendment issues; however, much of the CDA still stands, and
one particular part is directly relevant to this matter. specifically, ISPs
are explicitly immunized against lawsuits over content posted by others.
krusty has not really advertised heavily that we are an ISP, but we do sell
pop email drop boxes, web hosting services, and electronic mailing list
services, as well as consulting on linux internet server
implementation/deployment, which are clearly ISP products -- so krusty
walks like a duck and talks like a duck.

there have been two cases i am aware of where courts have supported ISPs
when they were sued over content generated by others, the best known having
to do with the AOL version of the Drudge report. however, neither of these
cases made it to the Supreme Court, so the precedent value isn't entirely
there yet. in the case of the threat against krusty last year, it was
issued by a party residing in California, in a circuit which has not
previously dealt with the issue, and so if the party had gone forward with
their threat, it would have been necessary to defend against the suit, at a
potentially unknown cost in time and money.

as it happens, a very competent law firm took an interest, and sent a
suitable letter to the offended party's attorney, citing the CDA and the
existing case law. the offended party's attorney has elected not to pursue
myself and krusty any further -- for the moment. so it's sort of gone away,
but not really, because it might conceivably come back someday, and if it
does, i'll have to defend myself.

all of you should take notice that the truth or falsity of the articles
which were considered offensive are entirely irrelevant to these legal
issues. sooner or later, i'd drop off the list of defendents in the
lawsuit, long before any slander/libel allegations were addressed, but the
time and cost to get to that point could be pretty significant.

for this reason alone, i'd really appreciate if people used some judgement
and discretion when posting about potentially explosive issues.

this particular incident from last fall was _not_ the first time i've been
threatened with a lawsuit, either explicitly or implicitly, but it is the
first time it ever got to the stages of lawyers talking at each other. it's
much closer to court than i really care to be.

richard

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