On Jul 12, 2005, at 4:01 PM, David W. Fenton wrote:
it's legal hooey, since a
"private" list that publicizes its existence and accepts anyone who
signs up is not in fact private by either statute or case law.
On the fact of it, that argument seems completely wrong to me.
A large body of case law, mostly dealing with supposed "private clubs" formed solely to discriminate against dark-skinned people, has thoroughly put paid to the notion that any association (electronic or not) can be private simply by declaring itself to be. The rulings in these cases, it must be emphasized, did not focus on the reasons for the privacy declaration, but on the actual extent to which privacy was and could be expected in the operations of the organization.
An important (non-legal) point not so far addressed here is that ordinary conversation (which is what we have on this list) is not truly a creative act, because it is not only unpremeditated, but in very large part unconscious: most of the time, we don't know what we are going to say until after we have said it. Anyone doubtful of this concept should read the extensive discusssion of it in Dennett, Consciousness Explained (1991). Speech--ordinary, everyday conversation--is a fundamental and routine product of the human brain. Trying to exercise control of such utterances after they leave one's mouth or keyboard is like nothing so much as saving one's hair and nail clippings. And getting indignant at what the barber does with them w.o your permission. After all, they're your property. Says so right here in the law. The nerve of that guy!
Andrew Stiller
Kallisti Music Press
http://home.netcom.com/~kallisti/
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