Archive of UserLand's first discussion group, started October 5, 1998.

Re: Netscape's legal agreement

Author:Dave Winer
Posted:3/15/1999; 7:03:07 PM
Topic:Re> Netscape's legal agreement
Msg #:4152 (In response to 4149)
Prev/Next:4151 / 4153

On yesterday's home page I said: 'Netscape's legal agreement was too one-sided and restrictive for us. Unless their agreement changes, you won't see our RSS file displayed on my.netscape.com. Be sure to read the agreement carefully before registering. You're giving Netscape's attorneys a lot of power over what you say on your website. Be sure there's something in it for you.' This is a response to Dave Aiello's posting asking me to explain my comments.

Dave, thanks for asking. Here's my reasoning process.

If I were an aggressive attorney, wanting to make life difficult for the editor of Scripting News (who is in some ways a competitor of theirs) I could find an example of almost every one of those offensive things in the archives of Scripting News.

We felt that they could have the right to terminate the syndication at any time without cause, and we would indemnify them against any claims that we had misbehaved, and leave it at that. That seemed reasonable. Add a disclaimer for their users that this window contains content that is outside of their control, and claim the same kind of lack of responsibility that an ISP is entitled to on the email messages that flow thru their servers.

Instead of looking at it from their point of view, look at it from mine. I would have to disclose this agreement in practically every DaveNet I write, further I would have to have them reviewed by attorneys to be sure there isn't some way I'm violating the agreement with Netscape. It's taken me a while to understand what I can and can't do, under the laws of the United States, and I'm comfortable with that, except when they pass vague laws that abrogate the Constitution. But even there, I trust the courts to provide a sensible backup plan. However, this would open us up to civil litigation under terms that are far narrower, and since it could be argued that we were compensated for agreeing to these constraints, there would be a lot of ways Netscape could win.

Of course they wouldn't really be concerned about the content if they sued, because we run a tasteful service, and I don't really do any of the things they say they're concerned about. It's much more likely that they would sue us as a competitive tactic. We're in a lot of the same businesses they are. And if you think I'm being paranoid, I am, with good cause. We once got into a legal jam with a competitor who was also a platform vendor, and they used a very old irrelevant legal agreement to delay shipping of a product that was embarassing because it was so much better than theirs. The thing to remember is that lawyers have databases, and it's really easy for them to do a query to find out what "tools" they have to get you to ease up on them in the marketplace.

I asked for no agreement with them to syndicate my content. I see them as being as neutral as an ISP. Further we have a track record they can examine, and as soon as there's a problem they can pull the plug. I don't see why they need to have to get into using terms like "pyramid schemes" or "grossly offensive" and what if someday I want to run a contest on Scripting News? Geeeeeeez.

Think about how zealous the open source guys are about legal agreements about source code. Well, I'm just as zealous about legal restrictions on what I can and can't say. The whole reason Scripting News is good is that I can say whatever I want in whatever way I want, within bounds that I think I understand, and no one can tell me otherwise.

Thanks for asking, clearly I had a lot to say about this!

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