February 22, 2005

5:39 PM

Inspired by this thread, I've set up MefiLawyers, a Google Groups mailing list for the lawyer and lawyer-wannabe Mefite community. Given that Metafilter is growing in leaps and bounds, e-networking in subcommunities of shared interests seems like a good idea, so I figured I'd start the avalanche. Matt, if this is a pony that you'd rather take in-house, that would be cool too.
posted by Saucy Intruder to MetaFilter-related at 5:39 PM (20 comments total)

Matt, if this is a pony that you'd rather take in-house, that would be cool too.

Naw, you guys hang out there and sue each other to your hearts delight. :)

It's a good idea and someday I should have small interest communities or internal filters of some sort.
posted by mathowie at 5:59 PM on February 22, 2005

Also, if anyone is in the mood to do some pro bono lawyering for me, I could use some help drafting a TOS and PP that don't annoy anyone or step on any toes.
posted by mathowie at 6:02 PM on February 22, 2005

Good thinking, Saucy. Thanks.
posted by leecifer at 6:14 PM on February 22, 2005

Why don't all the MeFi lawyers sign up here and pool our resources to help out Matt as he needs it? I bet this won't be the only time he has a legal issue.

(TOS = Terms of Service; PP = Privacy Policy)

I'm in a particularly tight crunch period at work, but would like to help out if either (1) there's no a big time sensitivity; or (2) I'd be one of a team. My email is onlyconnect at gmail dot com. Please contact me any time you have a question I can help you with about the site. I can't promise you I'll have an answer (which is why it would be good if we had a pool of MeFi legal volunteers), but I'd like to help the site if I could.

(The site's got a special place in my heart, since I met my sweetie NortonDC at a meetup!)
posted by onlyconnect at 7:18 PM on February 22, 2005

I'd love to help, but I'm afraid I don't have any idea how to do any of that! If you need my law student unlimited free Lexis/Westlaw access, though, let me know.

Also, I've been teaching people how to negotiate for many years, and I'll be doing it again after I graduate this spring. Matt, if you need any help negotiating with anyone for something, lemme know!
posted by equipoise at 7:33 PM on February 22, 2005

Ditto to equipoise (first paragraph). I'm happy to be part of a legal aid pool though and, if any Copyright questions come up, maybe some day I'll know the answer.

Perhaps the easiest thing would be to have Matt post questions/help requests to the Google group when they come up (assuming more folks sign up).
posted by leecifer at 7:38 PM on February 22, 2005

Good idea, guys. I think it would be uber helpful for Matt to have an in-house pool of law-savvy MeFites when dealing with issues like this.
posted by Lush at 8:19 PM on February 22, 2005

I can just see all the posts to that site already: "IAAL, but..."
posted by soyjoy at 9:54 PM on February 22, 2005

"I can just see all the posts to that site already: 'IAAL, but...'"

You really think it would be remotely that concise?
posted by Ethereal Bligh at 2:55 AM on February 23, 2005

You really want to mock someone else for being wordy? :P
posted by onlyconnect at 3:46 AM on February 23, 2005

No. I'm quite willing, and worthy of, self-mocking in this regard. But I just thought it was funny that I've never seen a legal disclaimer that succinct. :)
posted by Ethereal Bligh at 4:17 AM on February 23, 2005

Mathowie:

I humbly suggest that you not have your TOS or PP to be drafted by an active MeFite, be (s)he ever so good a lawyer. In my opinion, active MeFites have an actual or prospective conflict of interest as far as these issues.

Metafilter is sufficiently high profile that you can doubtless find a web-savvy lawyer happy to do this for you in exchange for a link and the development of a relationship.

I could definitely suggest a few people who might be interested, and who'd certainly be able to do a good job, if you'd like. (This I would need to do privately, of course.)

If you need transactional or litigation advice, which wouldn't present any conflict of interest, an active MeFite volunteer would be perfectly appropriate.
posted by MattD at 5:27 AM on February 23, 2005

All I know about is class action stuff.
posted by norm at 9:22 AM on February 23, 2005

I signed up for MeFiLawyers. I'd be happy to give some advice to anyone who needs it. I'd be happy to talk to Matt about this anonymous issue. Without giving legal advice or forming an attorney/client relationship, I think it might constructive to Matt to think about one necessary element of all torts: damages. Before you worry about getting sued, try to think what kind of actual damages such a suicidal person might have because you called to make sure he didn't kill himself....

MattD: I'm not sure it would be a conflict of interest. Professional Responsibility and conflict of interest law, at least here in Texas, focuses on representing two different clients which would have competing fiduciary interests. The fact that we are members does not a conflict make. Unless someone is representing something that competes in interest with Metafilter, there is no conflict issue.

For full disclosure: I represent corporations, primarily hospitals, in civil litigation.
posted by dios at 9:32 AM on February 23, 2005

it's not a conflict of interest for any of the practising lawyers to draw up the TOS or PP for matt. it just isn't. we attorneys provide legal services for things we're members of all the time. there could get to be conflicts down the road, but that's another thing entirely.

TOS and PP, however, are largely outside my practice area.
posted by crush-onastick at 9:46 AM on February 23, 2005

Speaking hypothetically, and not giving any actual legal advice, could someone here who knows provide a sense of the general state of case law concerning the responsibilities an operator of a public forum has? From other cases I've heard about, I was under the impression that the more editorial control is exercised, the more liable the operator becomes. Would this apply, in analogy, to an intervention like what Matt describes above?
posted by Ethereal Bligh at 10:05 AM on February 23, 2005

Well, without expending any energy actually reviewing the caselaw, I would comment that hypothetically, the liability of a forum operator is nil. Assuming there is no contract in existence between the two (and no forum I have been a part of had a contract) the mere usage of a forum does not create a contract for service (it would lack several elements of a contract, most importantly 'consideration'). The forum operator provides the user with something at the operators expense. The user provides nothing and therefore lacks consideration.

There is no tort model upon which I could envisage a liability arising for the operator (absent other facts, e.g. slander/libel) but those issues would not be unique to the operator. The only thing that would be unique to the operator would be in the defamation context. That the operator is the publisher of the information, he could theoretically be held liable for defamation if he permits it and it met the elements of the cause of action. I'd have to seriously think about other possible issues, but none come to mind right now.

My analysis would be that the user of a forum has no property rights (absent a potential assertion of copyright) in anything that is done on a public forum. Unless you have a contract for service, a forum operator has no duty or obligation for anything related to providing the service. But I would think the prudent operator would be vigilant in prohibiting defaming remarks from being made. Note: the whole defamation issue becomes moot if the forum involves aliases and not the person's name; I can't defame theatrical matriarch, but I could defame Matt Haughey or Kevin Mellis.

That's all lunchtime chat; that isn't intended to be legal advice. ;)
posted by dios at 10:50 AM on February 23, 2005

I stand by my suggestion that an active MeFite ought not to draft TOS or PP for the reason is that such policies are, at their essence, creatures of their subsequent interpretation.

The drafting attorney, particularly in a case (such as this) where (s)he wouldn't have opposing counsel with whom to negotiate and refine provisions, is likely to be called upon subsequently to apply and determine breach of the rules, and, even if not so called upon, his documentary records and recollection could be very important.

There is at least a chance that the active MeFite would be an interested party in such a subsequent event. Finding other counsel then wouldn't cure the fact that (s)he remains effectively the sole custodian of vital information regarding the intent and circumstances of the rules.
posted by MattD at 2:58 PM on February 23, 2005

Dios -- operators of Internet forums are generally not obliged to exercise prior restraint, but they're regularly required to act to remove or modify postings which are in one way or another legally improper. When the impropriety is violation of copyright, this obligation is explicit under the DMCA.

Operators of Internet forums also have a duty not to obstruct justice, which means that once a posting or poster becomes legally suspect, they can't delete the information, and via a variety of pre- and post-9/11 laws and procedures can be required to act as an agent of law enforcement in any number of ways.
posted by MattD at 3:02 PM on February 23, 2005

MattD: I'm not sure where you are getting this theory. Attorney's draft agreements all the time for subjects that they are interested in. There is no conflict of interest in that situation. I think I am just not understanding what your analysis is suggesting.

No opposing counsel with whom to negotiate?
Why on earth would one need opposing counsel to draw up TOS or a privacy policy?

The attorney is called upon to apply and determine breach?
How so? Seems to me that the operator would initially be the one to interpret the rules, and if a problem arises, it would be a trier of fact (i.e., judge or jury) who has to "apply and determine breach."

I'm sincerely trying to figure out what you think the objection is because I have never heard of there being such a problem working on corporate policies. (And I work for a firm which handles corporate policies). Is this something you learned in a professional responsibility class?

But, as to your second comment, yes, you are correct that an operator has to ensure that laws aren't being violated on his board, and yes they can't obstruct justice. Those are criminal issues which didn't seem to be the basis of E_B's question because he cast his question in terms of liability which is a civil concept. Further, compliance with criminal laws is not a concept unique to operators of forums; everyone has to comply with them. But good of you to point those criminal issues out in case E_B was also interested in those.
posted by dios at 7:25 AM on February 24, 2005