News: Archive of Geocities will be released as a ~1TB torrent.
http://www.techdirt.com/articles/20101029/03055711647/archive-of-geocities-released-as-a-1tb-torrent.shtml
While this is great news to archivists and web historians, for the rest of the people who contributed to Geocities, their content is now exposed to the public. What if some college kid posted dark secrets that could now jeopardize his life? For example, what if a college kid posted a picture of him smoking pot 15 years ago, but is now running for a seat in Congress?
Archiving is full of controversies. Over 15 years ago, I thought it would be really cool to create a Time Capsule by archiving a bunch of my friends' web sites. At the time, I thought it would be interesting to see how people change over a decade, and if we ever have a reunion we'd be able to look back at the Time Capsule and reminisce about the good 'ol days. At the time, I was naive and thought archiving content would be like taking pictures-- people usually thank photographers for capturing precious moments that would have been lost without cameras+films. However, I've come to the conclusion that archiving content is not the same as taking pictures of precious moments. The reason is that most people seem to be embarrassed by the very same content they uploaded many years ago! I know this because in the past few years I've been getting requests after requests by these same friends to take down their sites. I can't really talk about the content of those sites publicly, but needless to say, the contents usually contain materials that are potentially harmful to their professional and/or personal lives.
In almost all cases I'd take down an archived content when asked to do so because I want to be nice. Now, let's suppose I don't play nice. What if I leave the archived content and somehow, the content becomes harmful to those people (e.g. pictures of them smoking weed when they were young, or blog exposing their weird fetishes/political party/admission of crime, and such)? Will the person who repost the content be liable for ruining their professional and personal lives? How about Google, Yahoo, Ask, Bing, Facebook, Twitter, Yelp, and a zillion other services that archive content... can these sites be held liable for archiving potentially damaging materials to the uploader? How does the First Amendment protect from reposting archived public domain content? How much legality is there to leave the content? How much obligation is there to take down the content?
As you can see, arguments can go in all directions. So I asked my friend D. Silverstein who is a lot more familiar with law than I am, and here is his response:
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Kevin,
Much of what I say is based on seeing the EFF's copyright/patent/trademark for programmers. First of all, the copyright notice doesn't matter. Under modern IP law (as agreed to by most developed countries), things are automatically copyrighted the moment they pop into existence. Technically, when you send an email to someone it has a copyright. But, given how email is used, it's very questionable that you could enforce that copyright, i.e. sue or collect a fee from someone who forwarded your email without your permission. Web pages are a little different. They have some more protection, but still, if it's a web page on the public internet, it's probably fair game. But there are some complications. Is the web page protected by a robots.txt file? Not all indexers respect robots.txt, but let's assume the ones in question did... the first thing that will reasonably happen before people actually try to take legal action is they will send you a cease and desist (C&D) letter. I take the stance i.e. if you're not hosting something that has legal attack dogs tied to it (i.e. copyrighted music or movies), just put it up, and don't worry about it until you get a C&D. If you get a C&D you can, at that point, decide if you want to fight or take it down. Also, since you're archiving it... you may qualify as a third party for DMCA safe harbor purposes, assuming someone gives you the content to host, or ask you to host the content. If you receive a takedown notice and honor it, you're not liable. If you simply copied it, then you probably don't qualify as a third party provider for DMCA safe harbor. Just to give an example, third party provider or ISP for DMCA safe harbor purposes is, e.g. YouTube. They host content that other people post. Either way, don't worry about it unless you get a C&D. Keep in mind that C&D's are basically lawyer nastygrams. They cost nothing to send, and they rack up a couple billable hours. So usually that's the first step someone takes before taking more serious action, i.e. trying to sue you. In short, the copyright is the one that has the most teeth, but these aren't secrets and this isn't content that he's trying to profit from. There might also be an angle where he could go after you for defamation... but if it's content that he wrote or collected... then I would think it would be hard to make a defamation case. And, in general, litigation is expensive.
Lastly, if this person is famous (e.g. running for public office/people who are highly public, such as celebrities, getting a promotion at work, etc), he/she knowingly give up a reasonable expectation of privacy that "private" citizens are entitled to. We actually owe that to Larry Flynt, publisher of Hustler Magazine. :) They published a satirical article that suggested Jerry Falwell committed incest, and it went to the supreme court. The First Amendment's free-speech guarantee prohibits awarding damages to public figures to compensate for emotional distress inflicted upon them. Thus, private citizens are entitled to more privacy than celebrities! There are of course exceptions to libel/slander and copyright laws for parody. Obviously if you publish malicious falsehoods about a celebrity, you may still be liable. That would be considered lying, and that is a totally different can of worms.
D. Silverstein
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So, that is his response, and it makes sense, but it makes me wonder what the world will be like 15 years from today.
In the mid 1990s, only geeks logged on the internet and created their own web sites filled with ugly HTML/blink/bold content. Fast forward to the 21st century and you see that almost everyone has contributed some content to the public web, be it a blog, Facebook messages, Flickr pictures, Twitter messages, Yelp review, Amazon votes, so on so forth. I can't help it wonder what the ramifications of archive be in yet another 15 years? Facebook (and Google and Twitter and all the other sites) are archiving EVERYTHING people contribute today. There's MORE content than ever, and much of the data will be potentially damning to people's lives in the future. What do you think could happen 15 years from today? Will there be lawsuits from people to take down archives? How much leg will they have? Should the law protect common people from embarrassing themselves, or should the law protect archivers?
-Kevin
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Follow-up:
http://techcrunch.com/2011/01/01/california-bill-criminalizing-online-impersonations-in-effect-starting-today/
"California’s SB 1411, which adds a layer of criminal and civil penalties for certain online impersonations, goes into effect starting today." Is archiving considered impersonation?
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